PEOPLE v. MALDONADO (2006)

Judgment, Supreme Court, Bronx County (Edward M. Davidowitz, J.), rendered October 23, 2003, convicting defendant, after a jury trial, of robbery in the first degree (two counts) and robbery in the third degree, and sentencing him, as a second violent felony offender, to concurrent terms of 25 years, 25 years and 3 1/212 to 7 years, respectively, unanimously affirmed.

 The prosecutor's summation comment concerning the relationship between the two robberies for which defendant was being tried, and the trial court's jury instruction on this subject, were proper in light of the similarities between the two crimes (see e.g. People v. Jason, 190 A.D.2d 689, 594 N.Y.S.2d 41 [1993], lv. denied 81 N.Y.2d 1015, 600 N.Y.S.2d 203, 616 N.E.2d 860 [1993] ).

A succession of attorneys represented defendant during most of the time in which his case was pending before the grand jury, and the record fails to support his claim that he was without counsel.   Defendant's claims concerning his attempt to testify before the grand jury, and the subsequent motion practice on that issue, do not warrant reversal (see People v. Wiggins, 89 N.Y.2d 872, 653 N.Y.S.2d 91, 675 N.E.2d 845 [1996] ).

 The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002] ).   Defendant's theft-related convictions were highly relevant to his credibility and therefore admissible, even though he was being tried for robbery (see e.g. People v. Johnson, 277 A.D.2d 177, 716 N.Y.S.2d 651 [2000], lv. denied 96 N.Y.2d 784, 725 N.Y.S.2d 649, 749 N.E.2d 218 [2001] ), and none of his convictions was excessively remote in time (see e.g. People v. Starke, 237 A.D.2d 225, 226, 655 N.Y.S.2d 940 [1997], lv. denied 90 N.Y.2d 911, 663 N.Y.S.2d 523, 686 N.E.2d 235 [1997] ).

 Trial counsel provided effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).   Although counsel did not move to reopen the Wade hearing upon learning that one of the robbery victims had described defendant as wearing a blue shirt, the same color he wore at a lineup, this did not deprive defendant of effective assistance.   Such a motion would not have resulted in suppression (see e.g. People v. Shorter, 275 A.D.2d 253, 254, 711 N.Y.S.2d 431 [2000], lv. denied 95 N.Y.2d 969, 722 N.Y.S.2d 487, 745 N.E.2d 407 [2000] ).   The blue shirt was not so distinctive as to draw attention to defendant (see People v. Santos, 250 A.D.2d 413, 414, 673 N.Y.S.2d 94 [1998], lv. denied 92 N.Y.2d 905, 680 N.Y.S.2d 69, 702 N.E.2d 854 [1998], cert. denied 525 U.S. 1076, 119 S.Ct. 815, 142 L.Ed.2d 674 [1999] );  moreover, one of the fillers also wore a blue shirt.

Defendant's procedural challenge to his sentence is unpreserved (see People v. Samms, 95 N.Y.2d 52, 57-58, 710 N.Y.S.2d 310, 731 N.E.2d 1118 [2000] ), and we decline to review it in the interest of justice.   Were we to review this claim, we would find it to be unreviewable for lack of a sufficient record (see People v. Kinchen, 60 N.Y.2d 772, 469 N.Y.S.2d 680, 457 N.E.2d 786 [1983] ), and meritless in any event (see People v. Rodriguez, 197 A.D.2d 355, 602 N.Y.S.2d 348 [1993], lv. denied 82 N.Y.2d 902, 610 N.Y.S.2d 169, 632 N.E.2d 479 [1993];  see also Code of Judicial Conduct Canon 3[B][6] [c] ).

We perceive no basis for reducing the sentence.