Opinion
February 10, 2000
Judgment, Supreme Court, New York County (Franklin Weissberg, J.), rendered June 11, 1996, convicting defendant, after a jury trial, of murder in the second degree, criminal possession of a weapon in the second degree and criminal possession of weapon in the third degree, and sentencing him to concurrent terms of 22 years to life, 7 1/2 to 15 years and 3 1/2 to 7 years, respectively, unanimously affirmed.
Kenneth S. Levine for the Respondent.
Jennifer Sclar for the Defendant-Appellant.
SULLIVAN, J.P., NARDELLI, TOM, LERNER, ANDRIAS, JJ.
To the extent that defendant's ineffective assistance of counsel claim rests on factual assertions contained in his unsuccessfulCPL 440.10 motion, those assertions are not properly before this Court because leave to appeal was denied (see, People v. Williams, 266 A.D.2d 97 [Nov 18, 1999], 1999 N.Y. App. Div. LEXIS 11678). On the totality of the existing record, we conclude that defendant received meaningful representation (see, People v. Benevento, 91 N.Y.2d 708, 713-714). Trial counsel's failure to move for dismissal of the indictment based on preindictment delay does not require a finding of ineffectiveness, since defendant has not established that such a motion had any likelihood of success (see, People v. Singer, 44 N.Y.2d 241; People v. Taranovich, 37 N.Y.2d 442). While the delay was lengthy, the crime was extremely serious, defendant was not incarcerated on this charge during the period in question, and there is no evidence of bad faith or prejudice.
Motion seeking leave to strike reply brief denied.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.