People v Mackay
2009 NY Slip Op 02827 [61 AD3d 475]
April 14, 2009
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 10, 2009


The People of the State of New York, Respondent,
v
Donald Mackay, Appellant.

[*1] Jamel Oeser-Sweat, New York, for appellant.

Robert M. Morgenthau, District Attorney, New York (Paula-Rose Stark of counsel), for respondent.

Judgment, Supreme Court, New York County (Eduardo Padro, J.), rendered February 7, 2005, convicting defendant, after a jury trial, of leaving the scene of an incident without reporting and aggravated unlicensed operation of a motor vehicle in the second degree, and sentencing him to an aggregate term of 11/3 to 4 years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]). There is no basis for disturbing the jury's credibility determinations.

Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they primarily involve matters outside the record concerning counsel's strategy and preparation (see People v Rivera, 71 NY2d 705, 709 [1988]). On the existing record, to the extent it permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]).

We perceive no basis for reducing the sentence. We have considered and rejected defendant's arguments relating to the sentencing proceeding. Concur—Tom, J.P., Andrias, Buckley and DeGrasse, JJ.