PEOPLE v. SMITH (1997)

Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J., at Wade hearing;  Richard Andrias, J., at jury trial), rendered December 16, 1994, convicting defendant of robbery in the second degree, and sentencing him as a second felony offender, to a term of 6 to 12 years, unanimously affirmed.

 Defendant's motion to suppress identification testimony was properly denied.   The prompt, on-the-scene showup was not unduly suggestive and was not rendered improper by the independent existence of probable cause to arrest (People v. Duuvon, 77 N.Y.2d 541, 569 N.Y.S.2d 346, 571 N.E.2d 654).

The evidence was legally sufficient to establish defendant's guilt of robbery in the second degree beyond a reasonable doubt (People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932).   Moreover, the verdict was not against the weight of the evidence (CPL 470.15[5] ).  There was ample evidence supporting each element of the crime charged and issues of credibility were properly presented to the jurors, who saw and heard the witnesses and we see no reason to disturb their determination(People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).

 We find that the trial court did not err by denying, without a hearing, defendant's motion to set aside the verdict on the ground of ineffective assistance of counsel (CPL 330.30[1] ).  Since the motion did not involve conflicting factual averments and could be determined on the trial record taken together with defendant's submissions, a hearing was not required (People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834;  People v. Byrd, 239 A.D.2d 162, 657 N.Y.S.2d 896).   The record, viewed in its entirety, indicates that defendant received effective assistance of counsel (People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).

We have considered defendant's remaining contentions and find them to be without merit.

MEMORANDUM DECISION.