PEOPLE v. CEPHAS

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Herbert CEPHAS, Defendant-Appellant.

Decided: February 21, 2006

TOM, J.P., MAZZARELLI, ANDRIAS, NARDELLI, MALONE, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (William T. Russell, Jr. of counsel), and Simpson Thacher & Bartlett LLP, New York (Marissa A. Piropato of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Grace Vee of counsel), for respondent.

Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered May 16, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, and order, same court and Justice, entered on or about September 10, 2003, which denied defendant's CPL 440.10 motion to vacate the judgment of conviction, unanimously affirmed.

 The verdict was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility, including its evaluation of alleged inconsistencies in testimony (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112 [1903] ).

 The court properly denied defendant's CPL 440.10 motion without a hearing, since his moving papers failed to substantiate his claim that the judgment was procured by the knowing use by the prosecutor of false material testimony (CPL 440.10[1][c] ).  Rather than “false” testimony, defendant established, at most a minor discrepancy between the observing officer's testimony at trial and at a subsequent proceeding in this case (see People v. Stern, 226 A.D.2d 238, 240, 641 N.Y.S.2d 248 [1996], lv. denied 88 N.Y.2d 969, 647 N.Y.S.2d 723, 670 N.E.2d 1355 [1996] ).

The record establishes that defendant received effective assistance of counsel 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] ).   Contrary to defendant's arguments, we conclude that his attorney skillfully cross-examined the People's witnesses and made a thorough summation.

The court properly exercised its discretion in sentencing defendant as a persistent felony offender.

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.