Opinion
2017–07926 Ind.No. 4252/04
05-15-2019
The PEOPLE, etc., Respondent, v. Enos RAGGUETE, Appellant.
Paul Skip Laisure, New York, NY, for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, and Seth M. Lieberman, Brooklyn, of counsel), for respondent.
Paul Skip Laisure, New York, NY, for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, and Seth M. Lieberman, Brooklyn, of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERAppeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Matthew J. D'Emic, J.), dated June 12, 2017, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered February 18, 2010, as modified by decision and order of this Court dated August 20, 2014 ( People v. Ragguete, 120 A.D.3d 717, 991 N.Y.S.2d 131 ), convicting him of attempted assault in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the order is affirmed.
A jury convicted the defendant of assault in the first degree. On the defendant's direct appeal from the judgment of conviction, this Court determined that the People had failed to present legally sufficient evidence establishing that the complainant had suffered a "serious physical injury" within the meaning of the Penal Law ( Penal Law §§ 120.10[1] ; 10.00[10] ), and reduced the defendant's conviction to attempted assault in the first degree (see People v. Ragguete, 120 A.D.3d 717, 991 N.Y.S.2d 131 ). On his direct appeal, the defendant also argued, inter alia, that he was deprived of the effective assistance of counsel. Since this contention was based, in part, on matter outside the record on appeal, this Court stated that a CPL 440.10 proceeding would be the appropriate forum for reviewing the claim in its entirety (see People v. Ragguete, 120 A.D.3d at 718, 991 N.Y.S.2d 131 ). 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, and the defendant appeals, contending that the court should have granted the motion and reversed the judgment of conviction.
The defendant failed to demonstrate that he was deprived of the effective assistance of counsel (see U.S. Const Amend VI ; NY Const. art I, § 6 ; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). Accordingly, we agree with the Supreme Court's determination to deny the defendant's motion pursuant to CPL 440.10 (see CPL 440.30[4] ; 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 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834 ; People v. Burgos, 165 A.D.3d 834, 82 N.Y.S.3d 898 ).
SCHEINKMAN, P.J., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.