PEOPLE v. McDANIEL, 186 SSM 29 (N.Y. 9-1-2009)

THE PEOPLE C., Respondent, v. JERMAR McDANIEL, Appellant.

186 SSM 29.Court of Appeals of the State of New York.
Decided September 1, 2009.

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On review of submissions pursuant to section 500.11 of the Rules, order affirmed, in a memorandum.

Submitted by Arthur H. Hopkirk, for appellant.

Submitted by Kayonia L. Whetstone, for respondent.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

MEMORANDUM:
The order of the Appellate Division should be affirmed.

Because defense counsel’s decision not to seek dismissal of the robbery in the first degree charge for insufficient evidence would not have resulted in a dismissal of that charge (see People v Lopez, 73 NY2d 214, 219-220 [1989]; People v Baskerville, 60 NY2d 374, 380-381 [1983]), defendant’s

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claim of ineffective assistance of counsel is meritless. Furthermore, the attorney’s conduct did not consist of “egregious and prejudicial error such that defendant did not receive a fair trial” (People v Benevento, 91 NY2d 708, 713 [1998], citing People v Flores, 84 NY2d 184, 188-189
[1994]), but rather “viewed in totality and as of the time of the representation, reveal[s] that the attorney provided meaningful representation” (People v Baldi, 54 NY2d 137, 147 [1981]).