Opinion
9908 Ind. 4177/11
09-24-2019
The PEOPLE of the State of New York, Respondent, v. Walde VIZCAINO, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Alexandra L. Mitter of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Alexandra L. Mitter of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent.
Acosta, P.J., Manzanet–Daniels, Mazzarelli, Webber, Moulton, JJ.
Order, Supreme Court, New York County (Daniel P. Conviser, J.), entered on or about May 3, 2018, which denied defendant's CPL 440.10 motion to vacate a judgment of conviction, unanimously affirmed.
Upon our review of the record, which has now been expanded by way of information from trial counsel setting forth his strategic decision-making, to the best of his recollection, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento , 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ). Defendant has not shown that either of counsel's two alleged deficiencies fell below an objective standard of reasonableness, or that, viewed individually or collectively, they deprived defendant of a fair trial or affected the outcome of the case. Reopening of the suppression hearing based on the victim's trial testimony would have had no more than a remote chance of obtaining suppression of any evidence (see People v. Gray , 27 N.Y.3d 78, 82, 29 N.Y.S.3d 888, 49 N.E.3d 1180 [2016] ; People v. Jamison , 96 A.D.3d 571, 572, 946 N.Y.S.2d 569 [1st Dept. 2012], lv denied 19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111 [2012] ), and the discrepancies in police testimony regarding the place and manner in which the victim's property was recovered had "minimal impeachment value" ( People v. Smith , 90 A.D.3d 561, 561, 936 N.Y.S.2d 135 [1st Dept. 2011], lv denied 18 N.Y.3d 998, 945 N.Y.S.2d 653, 968 N.E.2d 1009 [2012] ; see also People v. Andrade , 71 A.D.3d 601, 602–03, 897 N.Y.S.2d 98 [1st Dept. 2010], lv denied 15 N.Y.3d 918, 913 N.Y.S.2d 645, 939 N.E.2d 811 [2010] ). Accordingly, defendant has not established either the unreasonableness or prejudice prongs of a state or federal ineffectiveness claim with regard to the absence of a motion to reopen the suppression hearing or the lack of cross-examination as to the alleged discrepancies in police testimony.