The People of the State of New York, Respondent, v. Edwin Padilla, Appellant

The People of the State of New York, Respondent, v Edwin Padilla, Appellant. [764 NYS2d 354] [MAJORITY] —Judgment, Supreme Court, New York County (Bernard Fried, J.), rendered October 5, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4V2 to 9 years, unanimously affirmed. The verdict was not against the weight of the evidence (see People v Bleakley, 69 NY2d 490 [1987]). Issues of credibility and identification were properly considered by the jury and there is no basis for disturbing its determinations. Defendant’s ineffective assistance of counsel claim involves factual assertions outside the record that would require a GPL 440.10 motion. To the extent the existing record permits review, it establishes that defendant received meaningful representation (see People v Benevento, 91 NY2d 708, 713-714 [1998]) and renders untenable defendant’s pro se claim that the decision that he not testify was made without consulting him. Concur — Ellerin, J.P., Williams, Lerner, Friedman and Gonzalez, JJ.