Appellate Division of the Supreme Court of New York, First DepartmentOct 6, 1998
254 A.D.2d 55 (N.Y. App. Div. 1998)
254 A.D.2d 55678 N.Y.S.2d 722

October 6, 1998

Appeal from the Supreme Court, New York County (Leslie Crocker Snyder, J.).

We find that there was ample evidence corroborating the accomplice testimony ( see, People v. Breland, 83 N.Y.2d 286, 292-294). The verdict was not against the weight of the evidence. We see no reason to disturb the jury's credibility determinations.

Defendant's motion to suppress identification testimony was properly denied. The lineup, at which the victim identified defendant as the driver of the vehicle used in the shooting, was not impermissibly suggestive where the participants were sufficiently similar ( People v. Chipp, 75 N.Y.2d 327, 336, cert. denied 498 U.S. 833). There is no support in the record for any of defendant's claims concerning an alleged violation of his right to counsel at the lineup.

The totality of the record fails to support defendant's claim that the court excessively interjected itself into the trial or conveyed an appearance of bias. Defendant, by failing to make a CPL 440.10 motion alleging ineffective assistance of trial counsel, has not provided an adequate record upon which to review his claim ( People v. Rivera, 71 N.Y.2d 705, 709). On the existing record, we find that defendant received effective assistance ( People v. Baldi, 54 N.Y.2d 137).

The imposition of consecutive sentences for the conspiracy and attempted murder convictions was lawful because conspiracy is a separate offense from the crime that is the object of the conspiracy ( People v. Krasnewicz, 116 A.D.2d 1016; People v. Cordoba, 208 A.D.2d 420, lv denied 84 N.Y.2d 1010). We do not perceive an abuse of sentencing discretion.

Defendant's remaining claims are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.

Concur — Rosenberger, J. P., Ellerin, Wallach and Williams, JJ.