People v Brown

People v Brown 2008 NY Slip Op 10043 [57 AD3d 386] December 23, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

The People of the State of New York, Respondent,
v
John Brown, Appellant.

—[*1] Robert E. Carrigan, Montclair, N.J., for appellant.

Robert T. Johnson, District Attorney, Bronx (Jennifer Marinaccio of counsel), for respondent.

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.

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. Concur—Tom, J.P., Saxe, Catterson, Moskowitz and DeGrasse, JJ.