People v. Macklin

Appellate Division of the Supreme Court of New York

People v. Macklin

288 A.D.2d 154, 733 N.Y.S.2d 181, 2001 N.Y. App. Div. LEXIS 11555

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 29, 2001

StatusPublished

This text of 288 A.D.2d 154 (People v. Macklin) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Macklin, 288 A.D.2d 154, 733 N.Y.S.2d 181, 2001 N.Y. App. Div. LEXIS 11555 (N.Y. Ct. App. 2001).

Pincite

Opinion

—Order, Supreme Court, Bronx County (Dominic Massaro, J.), entered April 20, 1999, which denied defendant’s motion pursuant to CPL 440.10 to vacate a judgment of the same court and Justice, rendered March 13, 1997, convicting defendant, after a jury trial, of two counts of rape in the first degree, and sentencing him to concurrent terms of 8 to 16 years, unanimously affirmed.

While we agree with defendant that his motion contained non-record factual allegations that could not have been made on direct appeal, we find that the motion was properly denied. Defendant’s allegations, some of which were made solely by defendant, were contradicted by his counsel, and which, we find, could not possibly be true (see, CPL 440.30 [4] [d]), do not establish ineffective assistance of trial counsel (see, People v Benevento, 91 NY2d 708, 713-714; People v Hobot, 84 NY2d 1021, 1024). In particular, we note that, even if true, the affidavits of defendant’s mother and brother that defendant was not in the apartment in question between 3:00 and 5:00 a.m. on the night of the incident, after which time they were asleep, and that they informed counsel that they would testify to this fact, were largely irrelevant, since the trial testimony showed that defendant and the complainant could have arrived in the apartment after these relatives retired and without their knowledge. Concur — Mazzarelli, J. P., Andrias, Ellerin, Buckley and Mar-low, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Order, Supreme Court, Bronx County (Dominic Massaro, J.), entered April 20, 1999, which denied defendant’s motion pursuant to CPL 440.10 to vacate a judgment of the same court and Justice, rendered March 13, 1997, convicting defendant, after a jury trial, of two counts of rape in the first degree, and sentencing him to concurrent terms of 8 to 16 years, unanimously affirmed.

While we agree with defendant that his motion contained non-record factual allegations that could not have been made on direct appeal, we find that the motion was properly denied. Defendant’s allegations, some of which were made solely by defendant, were contradicted by his counsel, and which, we find, could not possibly be true (see, CPL 440.30 [4] [d]), do not establish ineffective assistance of trial counsel (see, People v Benevento, 91 NY2d 708, 713-714; People v Hobot, 84 NY2d 1021, 1024). In particular, we note that, even if true, the affidavits of defendant’s mother and brother that defendant was not in the apartment in question between 3:00 and 5:00 a.m. on the night of the incident, after which time they were asleep, and that they informed counsel that they would testify to this fact, were largely irrelevant, since the trial testimony showed that defendant and the complainant could have arrived in the apartment after these relatives retired and without their knowledge. Concur — Mazzarelli, J. P., Andrias, Ellerin, Buckley and Mar-low, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

288 A.D.2d 154, 733 N.Y.S.2d 181, 2001 N.Y. App. Div. LEXIS 11555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-macklin-nyappdiv-2001.

Opinion

Related

Cite This Page — Counsel Stack