Opinion
2014-06-4
The PEOPLE, etc., respondent, v. Wilfredo MADERA, appellant.
Lynn W.L. Fahey, New York, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Avshalom Yotam of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Avshalom Yotam of counsel), for respondent.
Appeals by the defendant (1) from an amended judgment of the Supreme Court, Kings County (Brennan, J.), rendered September 17, 2009, revoking a sentence of probation previously imposed by the same court (Walsh, J.), upon a finding that he violated a condition thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of sexual abuse in the second degree, and (2), by permission, from an order of the same court (Brennan, J.) dated July 27, 2012, which denied his motion pursuant to CPL 440.10 to vacate the amended judgment.
ORDERED that the amended judgment and the order are affirmed.
Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel by his counsel's failure to challenge, on the ground of delay, the Supreme Court's jurisdiction to adjudicate the declaration of delinquency. Where, as here, an ineffective assistance claim is based on a particular alleged error in counsel's performance, “it is incumbent on [the] defendant to demonstrate the absence of strategic or other legitimate explanations” for counsel's alleged shortcoming ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;People v. Ambers, 115 A.D.3d 671, 981 N.Y.S.2d 554). “There are ‘rare’ cases where ‘a single failing in an otherwise competent performance is so egregious and prejudicial as to deprive a defendant of his constitutional right’ ” to the effective assistance of counsel ( People v. Feliciano, 17 N.Y.3d 14, 21, 926 N.Y.S.2d 355, 950 N.E.2d 91, quotingPeople v. Turner, 5 N.Y.3d 476, 480, 806 N.Y.S.2d 154, 840 N.E.2d 123). However, the defendant must show that the argument he faults his trial counsel for not advancing is so strong that “no reasonable defense lawyer could have found it ... to be not worth raising” ( People v. Turner, 5 N.Y.3d at 483, 806 N.Y.S.2d 154, 840 N.E.2d 123;see People v. Feliciano, 17 N.Y.3d at 28, 926 N.Y.S.2d 355, 950 N.E.2d 91). Under the circumstances of this case, counsel reasonably could have concluded that challenging the court's jurisdiction to adjudicate the declaration of delinquency on the ground of delay was unlikely to succeed ( cf. People v. Horvath, 37 A.D.3d 33, 39, 825 N.Y.S.2d 757;People v. Oquendo, 178 Misc.2d 1031, 1037, 683 N.Y.S.2d 720;People v. Roesler, 102 Misc.2d 858, 859–860, 424 N.Y.S.2d 643). Accordingly, counsel's decision not to raise the issue did not deprive the defendant of meaningful representation ( see People v. Feliciano, 17 N.Y.3d at 28, 926 N.Y.S.2d 355, 950 N.E.2d 91).
Contrary to the defendant's further contention, the Supreme Court did not err in denying that branch of his motion pursuant to CPL 440.10 which was to vacate the amended judgment of conviction on the ground that he lacked the capacity to admit that he violated a condition of his probation. The record establishes that his admission was knowing, voluntary, and intelligent ( see generally People v. Kinalis, 112 A.D.3d 739, 976 N.Y.S.2d 400, 401; People v. Reyes, 98 A.D.3d 1140, 1141, 951 N.Y.S.2d 232), and his claim to the contrary is belied by his lucid and appropriate responses during the proceeding ( see People v. Alexander, 97 N.Y.2d 482, 486, 743 N.Y.S.2d 45, 769 N.E.2d 802;People v. Gordon, 107 A.D.3d 739, 740, 966 N.Y.S.2d 214;People v. Kaszubinski, 55 A.D.3d 1133, 1135, 865 N.Y.S.2d 772;People v. Harrison, 52 A.D.3d 969, 970, 859 N.Y.S.2d 511;People v. Wager, 34 A.D.3d 505, 505–506, 823 N.Y.S.2d 522). MASTRO, J.P., ROMAN, HINDS–RADIX and LaSALLE, JJ., concur.