PEOPLE v. MONTALVO

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

The PEOPLE of the State of New York, Respondent, v. Orlando MONTALVO, Defendant-Appellant.

Decided: February 18, 1999

SULLIVAN, J.P., ELLERIN, LERNER and RUBIN, JJ. Edward L. Schnitzer, for Respondent. Sol E. Schwartzberg, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Steven Barrett, J.), rendered November 1, 1991, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, and orders, same court and Justice, entered August 14, 1993 and March 4, 1996, which denied defendant's motions pursuant to CPL 440.10 to vacate the judgment of conviction, unanimously affirmed.

 Upon our review of the record, we conclude that defendant received meaningful representation throughout the proceedings (see, People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584).   Counsel presented the only viable defense in light of the overwhelming evidence of guilt.   All of counsel's alleged failings with regard to presentation of proof have plausible strategic explanations.   The court's summary denials of defendant's CPL 440.10 motions were appropriate exercises of discretion since the motions were made upon conclusory and otherwise unsupported claims, and were repetitive (see, People v. Brown, 56 N.Y.2d 242, 451 N.Y.S.2d 693, 436 N.E.2d 1295).

 The court properly declined to submit the charge of second-degree manslaughter to the jury since there was no reasonable view of the evidence to support the conclusion that defendant acted recklessly as opposed to intending to kill or cause serious physical injury.   We perceive no abuse of sentencing discretion.   We have considered and rejected defendant's remaining claims.

MEMORANDUM DECISION.