Opinion
No. 186.
Decided September 1, 2009.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered September 9, 2008. The Appellate Division (1) affirmed a judgment of the Supreme Court, Bronx County (Robert G. Seewald, J.), which had convicted defendant, upon a jury verdict, of robbery in the first degree, and (2) affirmed an order of that court, which had denied defendant's CPL 440.10 motion to vacate the judgment.
People v McDaniel, 54 AD3d 577, affirmed.
Legal Aid Society, Criminal Appeals Bureau, New York City ( Arthur H. Hopkirk and Steven Banks of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx ( Kayonia L. Whetstone of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
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; People v Baskerville, 60 NY2d 374, 380-381), defendant's 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, citing People v Flores, 84 NY2d 184, 188-189), 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).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed in a memorandum.