PEOPLE v. FLOURNOY (2008)

Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated October 4, 2006, which, without a hearing, denied his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered July 3, 1997, convicting him of attempted murder in the second degree (two counts), assault in the first degree (two counts), assault in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the order is affirmed.

The defendant was deprived of his constitutional right to counsel at a lineup viewed by one eyewitness.   However, the error was harmless.   The evidence of the defendant's guilt, without reference to the lineup identification, was overwhelming, and there is no reasonable possibility that the error might have contributed to the defendant's conviction (see People v. Meadows, 64 N.Y.2d 956, 957-958, 488 N.Y.S.2d 643, 477 N.E.2d 1097, cert. denied 474 U.S. 820, 106 S.Ct. 69, 88 L.Ed.2d 56;  People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Orraca, 237 A.D.2d 148, 149, 655 N.Y.S.2d 7).

The defendant was not denied the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584).

Accordingly, the Supreme Court properly denied the defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction without holding a hearing (see CPL 440.30[4][a] ).