PEOPLE v. ORR (1997)

Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), rendered May 3, 1994, convicting defendant, after a jury trial, of robbery in the first, second, and third degrees, and sentencing him, as a second violent felony offender, to concurrent terms of 71/212 to 15 years, 71/212 to 15 years, and 31/212 to 7 years, respectively, unanimously affirmed.   Order, same court and Justice, dated November 15, 1994, which denied defendant's motion brought pursuant to CPL 440.10 to vacate the same judgment, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   We see no reason to disturb the jury's determinations concerning the reliability of identification testimony.   There was ample evidence of “physical injury” (Penal Law § 10.00[9];  People v. Pope, 174 A.D.2d 319, 571 N.Y.S.2d 205, lv. denied 78 N.Y.2d 1079, 577 N.Y.S.2d 243, 583 N.E.2d 955).

 The trial court properly denied defendant's motion for a missing witness charge, because the witness had become unavailable by the time of trial, despite reasonable subsequent efforts to locate him, and because there was no indication that he had material, non-cumulative testimony to offer (see, People v. Macana, 84 N.Y.2d 173, 180, 615 N.Y.S.2d 656, 639 N.E.2d 13;   People v. Jenkins, 213 A.D.2d 279, 624 N.Y.S.2d 141, lv. denied 85 N.Y.2d 974, 629 N.Y.S.2d 734, 653 N.E.2d 630).

 The court properly denied defendant's CPL 440.10 motion without a hearing, and without requiring a response from the People (see, CPL 440.10 [2][b], 440.30).   Defendant's ineffective assistance claim, based primarily on counsel's failure to utilize purported impeachment material that was undisputedly in counsel's possession, raised no issue that could not be resolved on the trial record, which establishes that defendant received meaningful representation (People v. Baldi, 54 N.Y.2d 137, 146, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Even assuming this isolated omission by counsel to be an error, such error did not undermine counsel's otherwise effective performance (see, People v. Alicea, 229 A.D.2d 80, 656 N.Y.S.2d 2).

MEMORANDUM DECISION.