| People v Rivera |
| 2007 NY Slip Op 09300 [45 AD3d 1487] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Frank Rivera,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Joseph S. Forma, J.), renderedDecember 7, 2005. The judgment convicted defendant, upon a jury verdict, of burglary in thesecond degree and possession of burglar's tools.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofburglary in the second degree (Penal Law § 140.25 [2]) and possession of burglar's tools(§ 140.35). Contrary to the contention of defendant, he was not denied effective assistanceof counsel by defense counsel's failure to move to reopen a suppression hearing. Defendant hasfailed to establish that "the motion, if made, would have been successful and has failed toestablish that counsel failed to provide meaningful representation" (People v Ayala, 236AD2d 802, 803 [1997], lv denied 90 NY2d 855 [1997]; see People v Peterson, 19 AD3d1015 [2005], lv denied 6 NY3d 851 [2006]). Defendant's further contention thatdefense counsel was ineffective in failing to make a record of a hearing concerning theadmissibility of a voice identification and Supreme Court's ruling following that hearing is basedon matters outside the record on appeal and thus is properly the subject of a motion pursuant toCPL article 440 (see generally People vWashington, 39 AD3d 1228, 1230 [2007], lv denied 9 NY3d 870 [2007];People v Jackson, 291 AD2d 930 [2002], lv denied 98 NY2d 677 [2002]). Wereject the contention of appellate counsel that he is unable to provide effective assistance ofcounsel on appeal based on the absence of a record of that alleged hearing. As noted, defendantmay 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 vBleakley, 69 NY2d 490, 495 [1987]), and the sentence is not unduly harsh or severe.Present—Gorski, J.P., Martoche, Smith, Peradotto and Green, JJ.