| People v Pedraza |
| 2008 NY Slip Op 09279 [56 AD3d 390] |
| November 25, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Eugenia Pedraza, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Jean Soo Park of counsel), forrespondent.
Order, Supreme Court, Bronx County (Richard Lee Price, J.), entered on or about December4, 2007, which denied defendant's CPL 440.10 motion to vacate a judgment, same court andJustice, rendered June 13, 2002, convicting her, after a jury trial, of kidnapping in the firstdegree, attempted murder in the second degree, and arson in the second degree, and imposingsentence, unanimously affirmed.
On direct appeal (25 AD3d 394 [2006], lv denied 7 NY3d 760 [2006]), defendant didnot challenge the suppression hearing court's ruling denying her motion to suppress statements,and she may not challenge that ruling by way of a motion to vacate judgment. A CPL 440.10motion may not be used as a device to obtain a second appeal on an issue that appears on the faceof the record (CPL 440.10 [2] [c]; People v Cooks, 67 NY2d 100 [1986]), and we see noreason to distinguish between issues of law and issues that seek to invoke this Court's interest ofjustice jurisdiction. To the extent that defendant's CPL 440.10 motion may be construed asseeking to elicit additional facts that were not part of the evidence before the suppression court,we reject that branch of the motion pursuant to CPL 440.10 (3) (a). We also note that we havepreviously denied a motion by defendant claiming ineffective assistance of appellate counsel.Accordingly, defendant's motion to vacate judgment was procedurally defective except to theextent it asserted ineffective assistance of trial counsel, a claim we reject on the merits.
Trial counsel provided effective assistance under the state and federal standards (seePeople v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland vWashington, 466 US 668 [1984]), and the court properly denied, without a hearing, thosebranches of the CPL 440.10 motion claiming ineffective assistance (see People vSatterfield, 66 NY2d 796, 799-800 [1985]). While defendant adequately explained herinability to obtain an affirmation from trial counsel, and her motion should not have been deniedon that basis (see People v Gil, 285 AD2d 7, 11-12 [2001]), defendant's papers still donot contain sworn allegations sufficient to substantiate the essential facts of her claims, and wethus reject her claims on the merits.
Defendant asserts that her trial counsel failed to interview and make use of potential defensewitnesses. Regardless of the extent of counsel's interview of a codefendant who had pleadedguilty prior to defendant's trial, and regardless of whether this codefendant could have [*2]provided exculpatory testimony, it would have been reasonable forcounsel to decline to call him as a witness. His testimony would have been unhelpful andpotentially damaging because he would inevitably have been impeached by means of his pleaallocution in which he had incriminated defendant (see People v Green, 27 AD3d 231, 232 [2006], lv denied 6NY3d 894 [2006]). While defendant claims her counsel should have interviewed defendant'sdaughters as possible witnesses, there is nothing to indicate they were alibi witnesses or couldhave provided any other type of exculpatory testimony (see People v Nichols, 289 AD2d605 [2001], lv denied 98 NY2d 639 [2002]).
Next, defendant argues that her trial counsel's communications with her throughout therepresentation were inadequate and impaired by a language barrier. However, the motion courtcorrectly determined that this contention is contradicted by the record, which reveals frequentand appropriate attorney-client consultations, in which counsel used an interpreter or his ownknowledge of Spanish.
We also reject defendant's claim that her attorney mishandled the suppression hearing byfailing to elicit evidence and make arguments concerning coercive circumstances andpre-Miranda-warnings custodial interrogation. Defendant has not shown that such astrategy would have had any reasonable likelihood of success. The factual assertions she nowclaims her attorney should have pursued were contradicted by police testimony at the hearing,and there is no reason to believe that the suppression court would have been persuaded todiscredit the police testimony and credit that of defendant.
Finally, even assuming that trial counsel's performance was deficient in all the ways cited bydefendant, these deficiencies did not deprive defendant of a fair trial, affect the outcome of theproceedings, or cause her any prejudice (see People v Caban, 5 NY3d 143, 155-156 [2005]; People vHobot, 84 NY2d 1021, 1024 [1995]). Concur—Mazzarelli, J.P., Friedman, Nardelli,Buckley and Freedman, JJ.