People v Luna

People v Luna 2007 NY Slip Op 07361 [44 AD3d 341] October 4, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

The People of the State of New York, Respondent,
v
Jose Otero Luna, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Gayle Pollack of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Julie Paltrowitz of counsel), for respondent.

Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered January 31, 2006, convicting defendant, after a jury trial, of two counts of burglary in the first degree and three counts of robbery in the second degree, and sentencing him to terms of 15 years on each burglary conviction and 10 years on each robbery conviction, all to run concurrently, unanimously affirmed.

Defendant did not preserve his Confrontation Clause claim and we decline to review it in the interest of justice. In any event, we find any error to be harmless beyond a reasonable doubt (see People v Hamlin, 71 NY2d 750, 758 [1988]) in view of the overwhelming evidence of defendant's guilt, including his confession.

Defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]). Even if his counsel had obtained exclusion of the implied hearsay evidence at issue, there is no reasonable possibility that the outcome of the trial would have been different.

We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P., Saxe, Sullivan, Catterson and Kavanagh, JJ.