Opinion
KA 03-00060.
February 4, 2005.
Appeal from a judgment of the Supreme Court, Erie County (Mario J. Rossetti, A.J.), rendered December 17, 2002. The judgment convicted defendant, upon a jury verdict, of attempted robbery in the second degree (two counts).
Present: Scudder, J.P., Kehoe, Gorski, Martoche and Smith, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [a], [b]). "Because the evidence at the first trial is legally sufficient, . . . we conclude that the retrial did not violate the prohibition against double jeopardy" ( People v. Smith, 8 AD3d 965, 966; see People v. Montgomery, 1 AD3d 984, 985, lv denied 1 NY3d 631). The evidence at the retrial likewise is legally sufficient to support the conviction, and the verdict is not against the weight of the evidence ( see People v. Moye, 11 AD3d 1027, 1028; see also People v. Rouse, 8 AD3d 982, lv denied 3 NY3d 681; see generally People v. Bleakley, 69 NY2d 490, 495). The evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant received meaningful representation ( see People v. Baldi, 54 NY2d 137, 147; see also People v. Hobot, 84 NY2d 1021, 1022).