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People v McDaniel (2009 NY Slip Op 06369)

Decided September 1, 2009
People v McDaniel, 54 AD3d 577, affirmed.
APPEARANCES OF COUNSEL
Legal Aid Society, Criminal Appeals Bureau, New York City (Arthur H. Hopkirk and Steven Banks of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Kayonia L. Whetstone of counsel), for respondent.
{**13 NY3d at 122} OPINION OF THE COURT
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 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,
file:///C|/Users/Peter/Desktop/NY/1/2009_06369.htm[4/21/2013 11:16:23 AM] People v McDaniel (2009 NY Slip Op 06369)
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]).
[*2]
Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed in a memorandum.
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