| People v Hernandez |
| 2008 NY Slip Op 02035 [49 AD3d 335] |
| March 11, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Rafael Hernandez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Edward A. Jayetileke of counsel), forrespondent.
Judgment, Supreme Court, New York County (Budd G. Goodman, J.), rendered February 10,2005, convicting defendant, after a jury trial, of two counts of burglary in the second degree, andsentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life,unanimously affirmed.
Defendant received effective assistance of counsel under the state and federal standards(see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland vWashington, 466 US 668 [1984]). Defendant asserts that his counsel rendered ineffectiveassistance by failing to make specific challenges to the sufficiency of the evidence. While failingto make a "winning argument" can constitute ineffective assistance (People v Turner, 5 NY3d 476, 481[2005]), none of the arguments in question fall into that category. The evidence supported theconclusion that defendant had no privilege or license to enter either of the apartments at issue(see e.g. People v Quinones, 173 AD2d 395 [1991], lv denied 78 NY2d 972[1991]), and also supported the conclusion that he left his fingerprints in those apartments in thecourse of burglarizing them (see e.g.People v Texeira, 32 AD3d 756 [2006], lv denied 7 NY3d 904 [2006]), and wefind that arguments to the contrary would have been unavailing. Concur—Mazzarelli, J.P.,Saxe, Friedman and Nardelli, JJ. [See 7 Misc 3d 568.]