PEOPLE v. WASHINGTON

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

The PEOPLE, etc., respondent, v. Marlon WASHINGTON, appellant.

Decided: November 27, 2007

HOWARD MILLER, J.P., ROBERT A. LIFSON, DANIEL D. ANGIOLILLO, and WILLIAM E. McCARTHY, JJ. John R. Lewis, Sleepy Hollow, N.Y., for appellant, and appellant pro se. Michael E. Bongiorno, District Attorney, New City, N.Y. (Ellen O'Hara Woods and Carrie A. Ciganek of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Rockland County (Resnik, J.), rendered December 17, 2001, convicting him of robbery in the first degree (two counts), robbery in the second degree (four counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Since the case against the defendant consisted of both direct and circumstantial evidence, the defendant was not entitled to a charge that his guilt must be proven to a moral certainty, rather than beyond a reasonable doubt (see People v. Daddona, 81 N.Y.2d 990, 992, 599 N.Y.S.2d 530, 615 N.E.2d 1014;  People v. Hinton, 285 A.D.2d 476, 476-477, 728 N.Y.S.2d 177;  People v. Alvarado, 262 A.D.2d 651, 652, 693 N.Y.S.2d 189).

 To the extent that the defendant's claims of ineffective assistance of counsel involve matter dehors the record, they may not be reviewed on direct appeal (see People v. Leach, 38 A.D.3d 917, 833 N.Y.S.2d 164;  People v. Santana, 279 A.D.2d 641, 719 N.Y.S.2d 879).   To the extent these issues were raised in the defendant's motion pursuant to CPL 440.10, they are not properly before this Court, as he failed to seek leave to appeal from the order denying that motion (see People v. Leach, 38 A.D.3d 917, 833 N.Y.S.2d 164).   Insofar as we are able to review the defendant's claims, the defense counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Stephens, 22 A.D.3d 691, 804 N.Y.S.2d 336;  People v. Griffith, 231 A.D.2d 530, 531, 647 N.Y.S.2d 249).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions, raised in his supplemental pro se brief, are unpreserved for appellate review, and, in any event, are without merit.

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