PEOPLE v. BARRERA

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The PEOPLE, etc., respondent, v. Jorge BARRERA, appellant.

Decided: January 26, 2010

REINALDO E. RIVERA, J.P., MARK C. DILLON, ARIEL E. BELEN, and SHERI S. ROMAN, JJ. Ali Nassiripour, Elmhurst, N.Y. (Eon Smith of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Ayelet Sela of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.), rendered May 2, 2007, convicting him of attempted rape in the first degree, sexual abuse in the first degree, and assault in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, he was not denied the effective assistance of counsel. The defendant has not demonstrated that his trial attorney's representation “fell below an objective standard of reasonableness” (Strickland v. Washington, 466 U.S. 668, 688), or that his attorney failed to provide him with “meaningful representation” (People v. Baldi, 54 N.Y.2d 137, 147). Since the defendant was known to the complainant, suggestiveness was not a concern (see CPL 710.30; People v. Foster, 217 A.D.2d 558, 558-559). Accordingly, any application for preclusion of an identification procedure which was merely confirmatory would have been denied, and defense counsel's failure to obtain a pretrial hearing did not deprive the defendant of effective assistance of counsel (see People v. Martinez, 201 A.D.2d 671; People v. Belgrave, 143 A.D.2d 103). Counsel effectively asserted the theory of the defense to the jury (People v. Dean, 50 AD3d 1052; cf. People v. Bell, 48 N.Y.2d 933), and spoke on the defendant's behalf during opening and closing statements, and at sentencing (see People v. Lane, 60 N.Y.2d 748, 751-752).

Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt of attempted rape in the first degree (see People v. Pereau, 64 N.Y.2d 1055; People v. Tores, 30 AD3d 549; People v.. Urbina, 248 A.D.2d 123; People v. Beamon, 215 A.D.2d 571; People v. Urso, 132 A.D.2d 769) and of sexual abuse in the first degree (see People v. Bonilla, 290 A.D.2d 454). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to those crimes was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).

The defendant's effort to induce the complainant not to cooperate with the prosecution was properly admitted as proof of consciousness of guilt (see People v. Bennett, 79 N.Y.2d 464, 469-470; People v. De Vivo, 282 A.D.2d 770, 772; People v. Rosio, 220 A.D.2d 851, 852-853; People v. Leitzsey, 173 A.D.2d 488, 488-489).

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

The defendant's remaining contentions are without merit.

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