Opinion
3909/04.
Decided August 16, 2005.
Defendant, David Gillespie, was convicted of burglary in the second degree (Penal Law 140.25-2) before this Court, with a jury, on February 17, 2005. Having obtained new counsel post verdict, defendant now moves to set aside the jury's verdict pursuant to CPL 330.30 (1).
For reasons stated below his motion is summarily DENIED.
The motion is premised primarily on the claim of ineffective assistance of trial counsel, which in turn is rooted almost exclusively in the assertion that trial counsel failed to vigorously cross-examine the People's fingerprint expert or call a defense fingerprint expert to counter or disparage the prosecution's expert. The defense has failed to demonstrate in what way the People's expert could and should have been cross-examined and impeached, or how a defense expert could have legitimately questioned or disagreed with the analysis or conclusion of the prosecution's fingerprint expert. See, People v. Jurgensen, 288 AD2d 937 [4th Dept 2001], lv denied 97 NY2d 684 (2001); People v. Castricone, 224 AD2d 1019 [4th Dept. 1996, after remand 239 AD2d 929, lv denied 90 NY2d 1010 (1997); People v. Foust, 192 AD2d 718 [2nd Dept 1993], lv denied 82 NY2d 717 (1993); error coram nobis denied, 242 AD2d 582.
While defendant relies on Castricone as authority for the Court to grant a hearing on ineffective assistance of trial counsel, the decision contains other language more instructive for the Gillespie case which would limit the scope of such a hearing, as follows: "Defense counsel need not, however, justify his refusal to obtain an expert witness. Defendant has not demonstrated that such testimony was available, that it would have assisted the jury in its determination or that he was prejudiced by its absence. " People v. Castricone, 224 AD2d at 1020.
The record fails to show that defendant received less than meaningful representation at trial. See, People v. Caban ___ NY2d ___, 2005 WL 1397044, 2005 NY Slip Op 04988 (June 14, 2005); People v. Benevento, 91 NY2d 708 (1998); People v. Baldi, 54 NY2d 137; see also, Strickland v. Washington, 466 US 668 (1984); People v. Henry, 95 NY2d 563 (2000); compare Henry v. Poole, 409 F3d 48 (2d Cir. 2005).
To the extent the defense seeks to expand the record through an evidentiary hearing to explore the trial strategy of defense counsel regarding the fingerprint expert, that is properly done, if at all, in a CPL 440.10 proceeding, should the defense be so advised to pursue it. CPL 330.30 (1), by its terms, limits judicial inquiry to matters of record. See, People v. Wolf, 98 NY2d 105, 119 (2002); 98 NY2d 105, 119 (2002); People v. Jackson, 19 AD3d 614 [2nd Dept 2005]; People v. Wells, 265 AD2d 588 [ 2nd Dept. 1999], lv denied 94 NY2d 886 (2000); People v. Armstrong, 237 AD2d 452 [2nd Dept 1997]; People v. Nieves, 144 AD2d 588, [2nd Dept 1988], lv denied 73 NY2d 924 (1989); compare People v. Satterfield, 66 NY2d 796 (1985).
In my view, neither the ineffective assistance claim presently made nor any asserted errors in the prosecutor's summation undermine the Court's confidence in the jury's verdict nor would these claims require an appellate court to reverse or modify this judgment as a matter of law. See, People v. McGrath, ___ AD3d ___, 2005 WL 1750407, 2005 NY Slip Op 06125 [2nd Dept July 25, 2005]; People v. Joseph, ___ AD3d ___, 797 NYS2d 310, 2005 NY Slip Op 05805 [2nd Dept July 5, 2005]; People v. Rhodes, 11 AD3d 487 [2nd Dept 2004], lv denied 4 NY3d 747 (2004).
Accordingly, for the reasons discussed herein, defendant's motion to set aside the verdict pursuant to CPL 330.30 (1) is summarily
DENIED.
IT IS SO ORDERED.