Opinion
2015–05496 Ind. No. 91/08
10-10-2018
The PEOPLE, etc., respondent, v. Jose BURGOS, appellant.
Hegge & Confusione, LLC, New York, N.Y. (Michael Confusione of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Merri Turk Lasky, and Kayonia Whetstone of counsel), for respondent.
Hegge & Confusione, LLC, New York, N.Y. (Michael Confusione of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Merri Turk Lasky, and Kayonia Whetstone of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Kenneth C. Holder, J.), dated June 1, 2015, which, without a hearing, denied his motion pursuant to CPL 440.10 to vacate a judgment of the same court (Robert J. Hanophy, J.), rendered May 6, 2010, convicting him of burglary in the second degree, possession of burglar's tools, petit larceny, criminal possession of stolen property in the fifth degree, and resisting arrest, upon a jury verdict, and imposing sentence.
ORDERED that the order is affirmed.
The defendant was convicted of burglarizing a home, stealing a wristwatch from that home, and resisting arrest. The judgment of conviction was affirmed on appeal ( People v. Burgos, 97 A.D.3d 689, 947 N.Y.S.2d 897 ). The defendant then moved to vacate the judgment of conviction pursuant to CPL 440.10 on the ground of ineffective assistance of trial counsel. The Supreme Court denied the motion, without a hearing, and the defendant appeals.
Contrary to the defendant's contentions, the Supreme Court could determine from the parties' submissions that the defendant was not deprived of the effective assistance of counsel (see People v. Satterfield, 66 N.Y.2d 796, 799–800, 497 N.Y.S.2d 903, 488 N.E.2d 834 ). The defendant failed to show that counsel acted without strategic or other legitimate explanation for the challenged conduct (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ; cf. People v. Bussey, 6 A.D.3d 621, 775 N.Y.S.2d 364 ; People v. Maldonado, 278 A.D.2d 513, 718 N.Y.S.2d 387 ). Accordingly, we agree with the court's determination to deny the defendant's motion pursuant to CPL 440.10 without holding a hearing (see CPL 440.30[4][b], [d] ; People v. Ozuna, 7 N.Y.3d 913, 915, 828 N.Y.S.2d 275, 861 N.E.2d 90 ; People v. Satterfield, 66 N.Y.2d at 799, 497 N.Y.S.2d 903, 488 N.E.2d 834 ; People v. Coleman, 37 A.D.3d 491, 827 N.Y.S.2d 878 ; People v. Broxton, 34 A.D.3d 491, 492, 824 N.Y.S.2d 127 ).
RIVERA, J.P., CHAMBERS, DUFFY and IANNACCI, JJ., concur.