People v. McDaniel

54 A.D.3d 577, 863 N.Y.S.2d 210

Opinions

Judgment, Supreme Court, Bronx County (Robert G. Seewald, J.), rendered May 2, 2005, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to a term of 20 years to life, affirmed. Order, same court and Justice, entered on or about October 28, 2005, which denied defendant’s CPL 440.10 motion to vacate the judgment, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury’s determinations concerning identification and credibility. The People proved beyond a reasonable doubt that defendant displayed what appeared to be a firearm (Penal Law § 160.15 [4]). As defense counsel’s own pre-charge com ments make clear, the victim’s demonstrations during her testimony established that defendant made an objective display that could reasonably be perceived as a firearm and that the victim actually perceived that display (see People v Lopez, 73 NY2d 214, 220 [1989]; People v Baskerville, 60 NY2d 374, 381 [1983]).

Defendant’s challenges to the prosecutor’s summation and the court’s failure to charge a lesser included offense are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal.

On the existing record, to the extent it permits review, we find that defendant received effective assistance of counsel under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]). Counsel advanced a persuasive, though ultimately unsuccessful, defense of misidentification. Concur— Tom, J.P., Friedman and Buckley, JJ.