People v. Green

14 A.D.3d 422, 787 N.Y.S.2d 868, 2005 N.Y. App. Div. LEXIS 456

Opinion

Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered February 1, 2002, convicting defendant, after a jury trial, of attempted assault in the first degree and criminal possession of a weapon in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 16 years to life, unanimously affirmed.

Defendant’s challenge to the effectiveness of his trial representation involves matters outside the record and thus would require a CPL 440.10 motion (People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). To the extent that the present record permits review, it establishes that defendant received effective assistance of counsel (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]). There is nothing in the record to suggest that counsel should have called an alibi witness, or any other witnesses.

The court properly denied defendant’s suppression motion. The photographic and lineup identifications were not unduly suggestive (see People v Chipp, 15 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]). Defendant’s attacks on the reliability of the identifying witness are unpreserved and unavailing, and in any event, would not establish a legal basis for suppression. Concur—Mazzarelli, J.P., Williams, Gonzalez, Sweeny and Catterson, JJ.