Opinion
No. 17617 Ind. No. 4749/15 Case No. 2018-4748
03-30-2023
The People of the State of New York, Respondent, v. David Hernandez, Defendant-Appellant.
David Hernandez, appellant pro se. Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Rutkin-Becker of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Noreen M. Stackhouse of counsel), for respondent.
David Hernandez, appellant pro se.
Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Rutkin-Becker of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Noreen M. Stackhouse of counsel), for respondent.
Before: Manzanet-Daniels, J.P., Kapnick, Webber, Friedman, Rodriguez, JJ.
Judgment, Supreme Court, New York County (Laura A. Ward, J. at suppression hearing; Robert M. Stolz, J. at jury trial and sentencing), rendered July 3, 2018, convicting defendant of robbery in the first and second degrees, attempted assault in the second degree, criminal possession of a weapon in the third degree, criminal possession of a controlled substance in the fourth degree and criminal possession of stolen property in the fifth degree, and sentencing him, as a second felony offender, to an aggregate term of 13 years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 N.Y.3d 342, 348 [2007]). There is no basis for disturbing the jury's credibility determinations. The victim's account of being robbed was generally corroborated by other evidence, and we find unpersuasive defendant's challenges to certain police testimony and the testimony of hotel employees who subdued defendant. Evidence appropriately credited by the jury established the elements of each of the charges. We have also considered and rejected defendant's legal sufficiency argument regarding the attempted assault conviction.
Defendant's ineffective assistance of counsel claims, alleging deficiencies in cross-examination, are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record (see People v Rivera, 71 N.Y.2d 705, 709 [1988]; People v Love, 57 N.Y.2d 998 [1982]). In the absence of a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 N.Y.2d 708, 713-714 [1998]; Strickland v Washington, 466 U.S. 668 [1984]). Defendant has not shown a reasonable probability that additional cross-examination of certain police witnesses as suggested by defendant on appeal would have affected the verdict.
The hearing court properly denied defendant's motion to suppress the drugs found in defendant's backpack at the police station. An officer's testimony about the relevant police procedures was sufficient to establish the validity of the search (see People v Padilla, 21 N.Y.3d 268 [2013], cert denied 571 U.S. 889 [2013]), "especially when viewed in the particular context of the long-recognized reasonableness of stationhouse inspections of arrestees' personal effects" (People v Goode, 176 A.D.3d 629, 630 [1st Dept 2019], lv denied 34 N.Y.3d 1159 [2020]; see also People v Cole, 151 A.D.3d 662, 663 [1st Dept 2017], lv denied 29 N.Y.3d 1125 [2017]).
We have considered defendant's pro se arguments and find them unavailing.
We perceive no basis for reducing the sentence. THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.