People v. Rivera

Nov 23, 2007
Versions:45 A.D.3d 1487
847 N.Y.S.2d 311

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 burglary in the second degree (Penal Law § 140.25 [2]) and possession of burglar‘s tools (§ 140.35). Contrary to the contention of defendant, he was not denied effective assistance of counsel by defense counsel‘s failure to move to reopen a suppression hearing. Defendant has failed to establish that “the motion, if made, would have been successful and has failed to establish that counsel failed to provide meaningful representation” (People v Ayala, 236 AD2d 802, 803 [1997], lv denied 90 NY2d 855 [1997]; see People v Peterson, 19 AD3d 1015 [2005], lv denied 6 NY3d 851 [2006]). Defendant‘s further contention that defense counsel was ineffective in failing to make a record of a hearing concerning the admissibility of a voice identification and Supreme Court‘s ruling following that hearing is based on matters outside the record on appeal and thus is properly the subject of a motion pursuant to CPL article 440 (see generally People v Washington, 39 AD3d 1228, 1230 [2007], lv denied 9 NY3d 870 [2007]; People v Jackson, 291 AD2d 930 [2002], lv denied 98 NY2d 677 [2002]). We reject the contention of appellate counsel that he is unable to provide effective assistance of counsel on appeal based on the absence of a record of that alleged hearing. As noted, defendant may raise that issue by way of a motion pursuant to CPL article 440.

Finally, the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]), and the sentence is not unduly harsh or severe. Present—Gorski, J.P., Martoche, Smith, Peradotto and Green, JJ.