People v. Silvestre

Appellate Division of the Supreme Court of New York

People v. Silvestre

279 A.D.2d 364, 719 N.Y.S.2d 248, 2001 N.Y. App. Div. LEXIS 410

Appellate Division of the Supreme Court of the State of New York·Decided January 18, 2001·Published·Cited by 6 cases

Opinion

Judgment, Supreme Court, New York County (Carol Berkman, J., at hearing; William Leibovitz, J., at jury trial and sentence), rendered January 27, 1999, convicting defendant of robbery in the second [365] degree and grand larceny in the fourth degree (eight counts), and sentencing him to a term of 4 to 8 years and eight terms of lVs to 4 years, all the terms to run concurrently, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the jury’s determinations concerning credibility and identification. There was ample evidence of physical injury, including the victim’s testimony that she suffered a sprained ankle as well as abrasions and bruises to her hands, elbow and leg, that her pain lasted one week and that she missed three days of work (see, People v Montalvo, 269 AD2d 328, lv denied 95 NY2d 800).

On the existing record, we find that trial counsel provided meaningful representation (see, People v Benevento, 91 NY2d 708, 713-714). Counsel’s elicitation of a photographic identification and related evidence was clearly part of a legitimate strategy aimed at establishing that the victim’s identification of defendant was unreliable.

The court’s Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see, People v Walker, 83 NY2d 455, 458-459).

We perceive no basis for reduction of sentence. Concur— Rosenberger, J. P., Tom, Mazzarelli, Ellerin and Wallach, JJ.

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Judgment, Supreme Court, New York County (Carol Berkman, J., at hearing; William Leibovitz, J., at jury trial and sentence), rendered January 27, 1999, convicting defendant of robbery in the second [365] degree and grand larceny in the fourth degree (eight counts), and sentencing him to a term of 4 to 8 years and eight terms of lVs to 4 years, all the terms to run concurrently, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the jury’s determinations concerning credibility and identification. There was ample evidence of physical injury, including the victim’s testimony that she suffered a sprained ankle as well as abrasions and bruises to her hands, elbow and leg, that her pain lasted one week and that she missed three days of work (see, People v Montalvo, 269 AD2d 328, lv denied 95 NY2d 800).

On the existing record, we find that trial counsel provided meaningful representation (see, People v Benevento, 91 NY2d 708, 713-714). Counsel’s elicitation of a photographic identification and related evidence was clearly part of a legitimate strategy aimed at establishing that the victim’s identification of defendant was unreliable.

The court’s Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see, People v Walker, 83 NY2d 455, 458-459).

We perceive no basis for reduction of sentence. Concur— Rosenberger, J. P., Tom, Mazzarelli, Ellerin and Wallach, JJ.

People v. Silvestre, 279 A.D.2d 364, 719 N.Y.S.2d 248, 2001 N.Y. App. Div. LEXIS 410 (N.Y. Ct. App. 2001).

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Opinion

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