People v. Orr

Appellate Division of the Supreme Court of New York

People v. Orr

240 A.D.2d 213, 659 N.Y.S.2d 1, 1997 N.Y. App. Div. LEXIS 6182

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

DecidedJune 10, 1997

StatusPublished

Cited by2 cases

This text of 240 A.D.2d 213 (People v. Orr) 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. Orr, 240 A.D.2d 213, 659 N.Y.S.2d 1, 1997 N.Y. App. Div. LEXIS 6182 (N.Y. Ct. App. 1997).

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Opinion

Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), rendered May 3, 1994, convicting defendant, after a jury trial, of robbery in the first, second, and third degrees, and sentencing him, as a second violent felony offender, to concurrent terms of 71/2 to 15 years, 71/2 to 15 years, and 31/2 to 7 years, respectively, unanimously affirmed. Order, same court and Justice, dated November 15, 1994, which denied defendant’s motion brought pursuant to CPL 440.10 to vacate the same judgment, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. We see no reason to disturb the jury’s determinations concerning the reliability of identification testimony. There was ample evidence of "physical injury” (Penal Law § 10.00 [9]; People v Pope, 174 AD2d 319, lv denied 78 NY2d 1079).

The trial court properly denied defendant’s motion for a [214]*214missing witness charge, because the witness had. become unavailable by the time of trial, despite reasonable subsequent efforts to locate him, and because there was no indication that he had material, non-cumulative testimony to offer (see, People v Macana, 84 NY2d 173, 180; People v Jenkins, 213 AD2d 279, lv denied 85 NY2d 974).

The court properly denied defendant’s CPL 440.10 motion without a hearing, and without requiring a response from the People (see, CPL 440.10 [2] [b]; 440.30). Defendant’s ineffective assistance claim, based primarily on counsel’s failure to utilize purported impeachment material that was undisputedly in counsel’s possession, raised no issue that could not be resolved on the trial record, which establishes that defendant received meaningful representation (People v Baldi, 54 NY2d 137, 146). Even assuming this isolated omission by counsel to be an error, such error did not undermine counsel’s otherwise effective performance (see, People v Alicea, 229 AD2d 80). Concur— Wallach, J. P., Nardelli, Rubin, Tom and Andrias, JJ.

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Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), rendered May 3, 1994, convicting defendant, after a jury trial, of robbery in the first, second, and third degrees, and sentencing him, as a second violent felony offender, to concurrent terms of 71/2 to 15 years, 71/2 to 15 years, and 31/2 to 7 years, respectively, unanimously affirmed. Order, same court and Justice, dated November 15, 1994, which denied defendant’s motion brought pursuant to CPL 440.10 to vacate the same judgment, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. We see no reason to disturb the jury’s determinations concerning the reliability of identification testimony. There was ample evidence of "physical injury” (Penal Law § 10.00 [9]; People v Pope, 174 AD2d 319, lv denied 78 NY2d 1079).

The trial court properly denied defendant’s motion for a [214]*214missing witness charge, because the witness had. become unavailable by the time of trial, despite reasonable subsequent efforts to locate him, and because there was no indication that he had material, non-cumulative testimony to offer (see, People v Macana, 84 NY2d 173, 180; People v Jenkins, 213 AD2d 279, lv denied 85 NY2d 974).

The court properly denied defendant’s CPL 440.10 motion without a hearing, and without requiring a response from the People (see, CPL 440.10 [2] [b]; 440.30). Defendant’s ineffective assistance claim, based primarily on counsel’s failure to utilize purported impeachment material that was undisputedly in counsel’s possession, raised no issue that could not be resolved on the trial record, which establishes that defendant received meaningful representation (People v Baldi, 54 NY2d 137, 146). Even assuming this isolated omission by counsel to be an error, such error did not undermine counsel’s otherwise effective performance (see, People v Alicea, 229 AD2d 80). Concur— Wallach, J. P., Nardelli, Rubin, Tom and Andrias, JJ.

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Bluebook (online)

240 A.D.2d 213, 659 N.Y.S.2d 1, 1997 N.Y. App. Div. LEXIS 6182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-orr-nyappdiv-1997.

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