People v Elliot

People v Elliot 2018 NY Slip Op 03485 Decided on May 15, 2018 Appellate Division, First Department 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.

Decided on May 15, 2018
Richter, J.P., Andrias, Webber, Gesmer, Moulton, JJ.
6563 5207/13

[*1]The People of the State of New York, Respondent,

v

Daryl Elliot, Defendant-Appellant.

Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant.

Daryl Elliot, appellant pro se.

Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), for respondent.

Judgment, Supreme Court, New York County (Daniel FitzGerald, J.), rendered October 9, 2014, convicting defendant, after a jury trial, of two counts of robbery in the third degree, and sentencing him to concurrent terms of 2⅓ to 7 years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations, including its evaluation of any effects of the victim's intoxication.

Defendant's pro se ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters outside the record. Accordingly, since defendant has not made a CPL 440.10 motion, the merits of these claims may not be addressed on appeal. In the alternative, to the extent the existing record 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]; Strickland v Washington, 466 US 668 [1984]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 15, 2018

CLERK