People v. Hogan

Feb 4, 2005
Versions:15 A.D.3d 944
788 N.Y.S.2d 906
2005 N.Y. App. Div. LEXIS 977

Appeal from a judgment of the Supreme Court, Erie County (Mario J. Rossetti, A.J.), rendered December 17, 2002. The judgment convicted de*945fendant, upon a jury verdict, of attempted robbery in the second degree (two counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [2] [a], [b]). “Because the evidence at the first trial is legally sufficient, . . . we conclude that the retrial did not violate the prohibition against double jeopardy” (People v Smith, 8 AD3d 965, 966 [2004]; see People v Montgomery, 1 AD3d 984, 985 [2003], lv denied 1 NY3d 631 [2004]). The evidence at the retrial likewise is legally sufficient to support the conviction, and the verdict is not against the weight of the evidence (see People v Moye, 11 AD3d 1027, 1028 [2004]; see also People v Rouse, 8 AD3d 982 [2004], Iv denied 3 NY3d 681 [2004]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant received meaningful representation (see People v Baldi, 54 NY2d 137, 147 [1981]; see also People v Robot, 84 NY2d 1021, 1022 [1995]). Present — Scudder, J.P, Kehoe, Gorski, Martoche and Smith, JJ.