Opinion
No. KA 06-01586.
November 23, 2007.
Appeal from a judgment of the Supreme Court, Erie County (Joseph S. Forma, J.), rendered December 7, 2005. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree and possession of burglar's tools.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS T. TEXIDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR RESPONDENT.
Present: Gorski, J.P., Martoche, Smith, Peradotto and Green, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the second degree (Penal Law § 140.25) and possession of burglar's tools (§ 140.35). Contrary to the contention of defendant, he was not denied effective assistance of counsel by defense counsel's failure to move to reopen a suppression hearing. Defendant has failed to establish that "the motion, if made, would have been successful and has failed to establish that counsel failed to provide meaningful representation" ( People v Ayala, 236 AD2d 802, 803, lv denied 90 NY2d 855; see People v Peterson, 19 AD3d 1015, lv denied 6 NY3d 851). Defendant's further contention that defense counsel was ineffective in failing to make a record of a hearing concerning the admissibility of a voice identification and Supreme Court's ruling following that hearing is based on matters outside the record on appeal and thus is properly the subject of a motion pursuant to CPL article 440 ( see generally People v Washington, 39 AD3d 1228, 1230, lv denied 9 NY3d 870; People v Jackson, 291 AD2d 930, lv denied 98 NY2d 677). We reject the contention of appellate counsel that he is unable to provide effective assistance of counsel on appeal based on the absence of a record of that alleged hearing. As noted, defendant may raise that issue by way of a motion pursuant to CPL article 440.
Finally, the verdict is not against the weight of the evidence ( see generally People v Bleakley, 69 NY2d 490, 495), and the sentence is not unduly harsh or severe.