People v. Streeter

• Decision Date: 07 February 1997
• Parties: PEOPLE of the State of New York, Respondent, v. Parish STREETER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 901

653 N.Y.S.2d 901

236 A.D.2d 857

PEOPLE of the State of New York, Respondent, v. Parish STREETER, Appellant.

Supreme Court of New York, Appellate Division,

Fourth Department.

Feb. 7, 1997.

Paul Buerger, Jr., Lockport, for Appellant.

Matthew J. Murphy, III by Thomas Brandt, Lockport, for Respondent.

MEMORANDUM:

On appeal from a judgment convicting him of robbery in the first degree and burglary in the first degree, defendant contends that he was deprived of his right to effective assistance of counsel based on counsel's failure to call two purported alibi witnesses subpoenaed by defendant to testify at trial. Because the record does not disclose the reason the witnesses were not called, "we presume it was based upon sound trial strategy and did not deprive defendant of a fair trial" (People v. Smith [William], 115 A.D.2d 304, 496 N.Y.S.2d 129; see, People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400; People v. Nunez, 186 A.D.2d 764, 589 N.Y.S.2d 64). County Court properly denied without a hearing defendant's motion to set aside the verdict on the ground of ineffective assistance of counsel because the moving papers do not "contain sworn allegations of all facts essential to support the motion" (CPL 330.40[2][e][ii]; see generally, People v. Crippen, 196 A.D.2d 548, 601 N.Y.S.2d 152, lv. denied 82 N.Y.2d 848, 606 N.Y.S.2d 600, 627 N.E.2d 522; People v. Harris, 131 A.D.2d 142, 521 N.Y.S.2d 117).

Defendant's further contention that the identification evidence is legally insufficient has not been preserved for our review by a "motion to dismiss 'specifically directed' at the alleged defects in the proof" (People v. De Jac, 219 A.D.2d 102, 106, 637 N.Y.S.2d 874, lv. denied 88 N.Y.2d 935, 647 N.Y.S.2d 168, 670 N.E.2d 452; see, People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919; People v. Perkov, 227 A.D.2d 960, 643 N.Y.S.2d 856). In any event, that contention lacks merit (see, People v. Cabey, 85 N.Y.2d 417, 420-421, 626 N.Y.S.2d 20, 649 N.E.2d 1164; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Finally, upon our review of the record, we conclude that the sentence is neither unduly harsh nor severe (see, CPL 470.15[6][b] ).

Judgment unanimously affirmed. (Appeal from Judgment of Niagara County Court, Hannigan, J.--Robbery, 1st Degree.)

PINE, J.P., and LAWTON, FALLON, DOERR and BALIO, JJ., concur.