| People v Hayward |
| 2008 NY Slip Op 00991 [48 AD3d 209] |
| February 5, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Derrick Hayward, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Dennis Rambaud of counsel), forrespondent.
Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered November 30,2005, convicting defendant, after a jury trial, of criminal possession of a weapon in the secondand third degrees, and sentencing him, as a second violent felony offender, to concurrent terms ofnine years and five years, and order, same court and Justice, entered on or about April 27, 2007,which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.
Defendant's challenge to the sufficiency of the evidence is unpreserved (see People vGray, 86 NY2d 10 [1995]), and we decline to review it in the interest of justice. As analternative holding, we also reject it on the merits. We further find that the verdict was notagainst the weight of the evidence. The evidence, including a videotape, supports the conclusionthat defendant fired a pistol in a building lobby and fled with it. There is no basis for disturbingthe jury's determinations concerning the credibility of defendant's witnesses (see People vBleakley, 69 NY2d 490, 495 [1987]).
Defendant's claim that his statement should have been suppressed on the ground of allegedunnecessary delay in his arraignment is a claim requiring preservation (People v Ramos,99 NY2d 27 [2002]), and we decline to review this unpreserved claim in the interest of justice. Inaddition, defendant has failed to create a record adequate for review of the issue (see People vKinchen, 60 NY2d 772 [1983]).
The court properly denied, without a hearing, defendant's CPL 440.10 motion allegingineffective assistance of counsel (seePeople v Ozuna, 7 NY3d 913 [2006]). Defendant's claim that his attorney never advisedhim of his right to testify at trial is unsupported (see CPL [*2]440.30 [4] [d]). Moreover, the trial transcript establishes thatdefendant was aware of his right to testify and chose not to exercise it (see CPL 440.30[4] [c]).
We perceive no basis for reducing the sentence. Concur—Lippman, P.J., Mazzarelli,Friedman, Sweeny and Moskowitz, JJ.