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People v. Brown

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 23, 2008

THE PEOPLE OF THE STATE OF NEW YORK, DOCKET 12898C/05 RESPONDENT,
v.
JOHN BROWN, DEFENDANT-APPELLANT.

Judgment, Criminal Division of the Supreme Court, Bronx County (Michael Gross, J.), rendered March 10, 2005, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the fourth degree and violation of the Open Container Law (Administrative Code of City of NY § 10-125[b]), and sentencing him to a conditional discharge and time served, unanimously affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Saxe, Catterson, Moskowitz, DeGrasse, JJ.

To the extent that defendant's ineffective assistance of counsel claim is based upon the denial of his CPL 440.10 motion, the claim is not properly before this Court as his motion for leave to appeal was denied. On the existing record, to the extent it permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; People v Ford, 86 NY2d 397, 404 [1995]; see also Strickland v Washington, 466 US 668 [1984]). Given defendant's extensive criminal record, counsel could have reasonably concluded that the disposition offered at arraignment, providing for a nonincarceratory sentence with immediate release from custody, was so favorable that it would be unwise to forgo it in favor of litigating a suppression claim, regardless of the claim's merits.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081223

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