PEOPLE v. MARSHALL (2004)

Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), rendered August 30, 2001, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to a term of 5 years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Issues of identification and credibility, including the weight to be given to inconsistencies in testimony, were properly considered by the jury and there is no basis to disturb its determinations.

 The record establishes that defendant received effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584;  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674).   Counsel conducted a thorough and vigorous misidentification defense.   The record does not support defendant's contention that counsel made a promise in his opening statement to produce alibi evidence.   Furthermore, when counsel referred to defendant by name during cross-examination of the identifying witness, this could not have undermined the mistaken identity defense.  “After a witness identifies a defendant as a perpetrator, defense counsel is under no obligation to phrase every question on cross-examination in a manner designed to remind the jury constantly of the obvious fact that the issue of identity has not been conceded” (People v. Carver, 234 A.D.2d 164, 165, 651 N.Y.S.2d 461, lv. denied 89 N.Y.2d 1010, 658 N.Y.S.2d 248, 680 N.E.2d 622).

Defendant's contentions concerning jury note-taking are unpreserved (People v. Valiente, 309 A.D.2d 562, 765 N.Y.S.2d 503), and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.