People v. Marshall

Appellate Division of the Supreme Court of New York

People v. Marshall

3 A.D.3d 318, 770 N.Y.S.2d 315

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

DecidedJanuary 6, 2004

StatusPublished

This text of 3 A.D.3d 318 (People v. Marshall) 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. Marshall, 3 A.D.3d 318, 770 N.Y.S.2d 315 (N.Y. Ct. App. 2004).

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Opinion

Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), rendered August 30/2001, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to a term of five years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Bleakley, 69 NY2d 490 [1987]). Issues of identification and credibility, including the weight to be given to inconsistencies in testimony, were properly considered by the jury and there is no basis to disturb its determinations.

The record 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]). Counsel conducted a thorough and vigorous misidentification defense. The record does not support defendant’s contention that counsel made a promise in his opening statement to produce alibi evidence. Furthermore, when counsel referred to defendant by name during cross-examination of the identifying witness, this could not have undermined the mistaken identity defense. “After a witness identifies a defendant as a perpetrator, defense counsel is under no obligation to phrase every question on cross-examination in a manner designed to remind the jury constantly of the obvious fact that the issue of identity has not been conceded” (People v Carver, 234 AD2d 164, 165 [1996], lv denied 89 NY2d 1010 [1997]).

Defendant’s contentions concerning jury note-taking are unpreserved (People v Valiente, 309 AD2d 562 [2003]), and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. Concur—Mazzarelli, J.P., Andrias, Saxe, Williams and Friedman, JJ.

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Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), rendered August 30/2001, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to a term of five years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Bleakley, 69 NY2d 490 [1987]). Issues of identification and credibility, including the weight to be given to inconsistencies in testimony, were properly considered by the jury and there is no basis to disturb its determinations.

The record 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]). Counsel conducted a thorough and vigorous misidentification defense. The record does not support defendant’s contention that counsel made a promise in his opening statement to produce alibi evidence. Furthermore, when counsel referred to defendant by name during cross-examination of the identifying witness, this could not have undermined the mistaken identity defense. “After a witness identifies a defendant as a perpetrator, defense counsel is under no obligation to phrase every question on cross-examination in a manner designed to remind the jury constantly of the obvious fact that the issue of identity has not been conceded” (People v Carver, 234 AD2d 164, 165 [1996], lv denied 89 NY2d 1010 [1997]).

Defendant’s contentions concerning jury note-taking are unpreserved (People v Valiente, 309 AD2d 562 [2003]), and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. Concur—Mazzarelli, J.P., Andrias, Saxe, Williams and Friedman, JJ.

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3 A.D.3d 318, 770 N.Y.S.2d 315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-marshall-nyappdiv-2004.

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