PEOPLE v. JACKSON

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Shariff JACKSON, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, KEHOE, MARTOCHE, AND LAWTON, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Paul J. Williams, III, of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, sodomy in the first degree (Penal Law former § 130.50[1] ), two counts of rape in the first degree (§ 130.35[1] ), and three counts of robbery in the first degree (§ 160.15[1], [3], [4] ).   We reject the contention of defendant that he was denied effective assistance of counsel (see generally People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;   People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Although “[a] single error may qualify as ineffective assistance, ․ [t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to ‘make a motion or argument that has little or no chance of success' ” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213, quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883, rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671).   Here, “defendant failed to show that he suffered the requisite prejudice because of counsel's failure to move for severance” of the counts involving one victim from those involving the other victim (People v. McNerney, 6 A.D.3d 1107, 1107, 775 N.Y.S.2d 739, lv. denied 3 N.Y.3d 678, 784 N.Y.S.2d 17, 817 N.E.2d 835, citing People v. Ruger, 288 A.D.2d 686, 687, 732 N.Y.S.2d 727, lv. denied 97 N.Y.2d 733, 740 N.Y.S.2d 706, 767 N.E.2d 163).

 We further reject the contention of defendant that Supreme Court erred in denying his motion to dismiss the indictment pursuant to CPL 30.10.   The record supports the court's determination that the identity of defendant as the sexual assailant, and thus his whereabouts, were not ascertainable by diligent efforts prior to July 1998 (see People v. Jones, 299 A.D.2d 283, 751 N.Y.S.2d 173, lv. denied 99 N.Y.2d 655, 760 N.Y.S.2d 120, 790 N.E.2d 294;  see generally People v. Seda, 93 N.Y.2d 307, 311-312, 690 N.Y.S.2d 517, 712 N.E.2d 682).   The sentence, which we note is reduced by operation of law to an indeterminate term of 25 to 50 years (see Penal Law § 70.30[1][e][i], [vi] ), is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: