Opinion
January 13, 2000
Judgments, Supreme Court, Bronx County (Edward Davidowitz, J.), rendered December 23, 1996, convicting defendant, after a jury trial, of murder in the second degree and attempted murder in the second degree, and, upon his plea of guilty, of attempted murder in the second degree and criminal possession of a weapon in the third degree, and sentencing him to consecutive terms of 25 years to life and 7 to 21 years, concurrent with concurrent terms of 2 to 6 years and 1 year, unanimously affirmed.
Lisa I. Cuevas for Respondent.
Abigail Everett for Defendant-Appellant.
SULLIVAN, J.P., WILLIAMS, RUBIN, BUCKLEY, FRIEDMAN, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues relating to identification and credibility were properly presented to the jury to resolve and the record supports its determinations.
The court properly exercised its discretion in denying defendant's motion for an in camera hearing to examine the confidential informants (see, People v. Darden, 34 N.Y.2d 177; see also, People v. Huggins, 36 N.Y.2d 827), since the evidence adduced at the hearing regarding the informants and their information satisfied theAguilar-Spinelli test (Aguilar v. Texas, 378 U.S. 108; Spinelli v. United States, 393 U.S. 410) and provided probable cause for defendant's arrest, and defendant made no showing to warrant an in camera examination (see, People v. Ferron, 248 A.D.2d 962, lv denied 92 N.Y.2d 879; People v. Christian, 248 A.D.2d 960, lv denied 91 N.Y.2d 1006).
Defendant failed to establish that the evidence adduced at the reopened suppression hearing raised an issue concerning the suggestiveness of the lineup sufficient to warrant permitting him to call additional witnesses at the hearing (see, People v. Chipp, 75 N.Y.2d 327, cert denied 498 U.S. 833; People v. Phillips, 234 A.D.2d 57,lv denied 89 N.Y.2d 1098).
Since defendant failed to raise his ineffective assistance of counsel claim in a motion to vacate the judgment of conviction pursuant to CPL 440.10, his claim is not reviewable on direct appeal because it is based on facts dehors the record and counsel can not explain his trial tactics (People v. Brown, 45 N.Y.2d 852). Based on the existing record, we conclude that counsel provided meaningful representation (People v. Baldi, 54 N.Y.2d 137).
Defendant's remaining claims, including those contained in his pro se supplemental brief, are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.