| People v Rogers |
| 2007 NY Slip Op 07028 [43 AD3d 1189] |
| September 25, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AndreRogers, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brody, and Rona Kugler of counsel), for respondent.
Application by the defendant for a writ of error coram nobis to vacate a decision and order ofthis Court dated June 6, 2005 (People v Rogers, 19 AD3d 437 [2005]), affirming ajudgment of the Supreme Court, Queens County, rendered February 6, 2003. By decision andorder of this Court dated October 10, 2006, the defendant was granted leave to serve and file abrief on the issues of whether trial counsel became a witness against the defendant when thedefendant submitted his pro se motion pursuant to CPL 330.30, and whether the trial courtshould have assigned the defendant a new attorney in connection with his CPL 330.30 motion,and the coram nobis application was held in abeyance in the interim. The parties have now filedtheir respective briefs.
Ordered that the application is denied.
Contrary to the defendant's contentions, he was not denied the effective assistance ofappellate counsel based on, inter alia, the failure of his appellate counsel to raise certain issues onappeal, namely, whether the defendant's trial counsel became a witness against the defendantwhen he submitted his pro se motion pursuant to CPL 330.30, and whether the trial court shouldhave assigned the defendant a new attorney in connection with his CPL 330.30 motion. Thestatements made by the defendant's trial counsel in connection with the defendant's pro se motionpursuant to CPL 330.30, indicating that the defendant received the effective assistance of trialcounsel, were adverse to the defendant's contention that he was denied such effective assistance(see People v Coleman, 294 AD2d 843, 844 [2002]; see generally People vBetsch, 286 AD2d 887 [2001]). However, the record establishes that, in denying thedefendant's CPL 330.30 motion, the Supreme Court was not [*2]influenced by the statements of the defendant's trial counsel (seePeople v Shegog, 32 AD3d 1289 [2006]; People v Cook, 295 AD2d 888 [2002];People v Nawabi, 265 AD2d 156 [1999]; compare People v Gruttadauria, 40AD3d 879 [2007]). Thus, it was unnecessary to assign the defendant new counsel in connectionwith the motion (see People v Lattimore, 5 AD3d 399, 400 [2004]; People vRodriguez, 189 AD2d 684 [1993]). Accordingly, the appellate counsel's failure to raise theseissues on appeal did not constitute ineffective assistance of appellate counsel. Krausman, J.P.,Fisher, Lifson and Covello, JJ., concur.