In the Matter of People v. Jermar McDaniel

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This memorandum is uncorrected and subject to revision before publication in the New York Reports. No. 186 SSM 29 The People &c., Respondent, v. Jermar McDaniel, Appellant. Submitted by Arthur H. Hopkirk, for appellant. Submitted by Kayonia L. Whetstone, for respondent. MEMORANDUM: The order of the Appellate Division should be affirmed. Because defense counsel s decision not to seek dismissal of the robbery in the first degree charge for insufficient evidence would not have resulted in a dismissal of that charge (see People v Lopez, 73 NY2d 214, 219-220 [1989]; People v Baskerville, 60 NY2d 374, 380-381 [1983]), defendant s - 1 - - 2 - SSM No. 29 claim of ineffective assistance of counsel is meritless. Furthermore, the attorney s conduct did not consist of egregious and prejudicial error such that defendant did not receive a fair trial (People v Benevento, 91 NY2d 708, 713 [1998], citing People v Flores, 84 NY2d 184, 188-189 [1994]), but rather viewed in totality and as of the time of the representation, reveal[s] that the attorney provided meaningful representation (People v Baldi, 54 NY2d 137, 147 [1981]). * * * * * * * * * * * * * * * * * On review of submissions pursuant to section 500.11 of the Rules, order affirmed, in a memorandum. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur. Decided September 1, 2009 - 2 -

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