| People v Gomez |
| 2009 NY Slip Op 08634 [67 AD3d 927] |
| November 17, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v PedroGomez, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Douglas Noll and Andrew Fukuda ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Ayres, J.),rendered January 3, 2008, convicting him of burglary in the first degree, attempted robbery in thefirst degree (two counts), criminal use of a firearm in the first degree, criminal use of a firearm inthe second degree, criminal possession of a weapon in the second degree, criminal possession ofa weapon in the third degree, unlawful imprisonment in the second degree, menacing in thesecond degree, possession of burglary tools, and conspiracy in the fourth degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after a hearing(Honoroff, J.), of those branches of the defendant's omnibus motion which were to suppressidentification testimony and his statements to law enforcement officials.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, he was not denied the effective assistance of counsel.The defendant has not demonstrated that his attorney's representation "fell below an objectivestandard of reasonableness" (Strickland v Washington, 466 US 668, 688 [1984]) or thathis attorney failed to provide him with "meaningful representation" (People v Baldi, 54NY2d 137, 147 [1981]). The defendant's contention that trial counsel was ineffective for failingto take the steps necessary to the presentation of a defense of lack of criminal responsibility byreason of mental disease or defect is without merit. Under the circumstances of this case,counsel's decision to pursue a duress defense and not an insanity defense constituted areasonable trial strategy (see People vDavalloo, 39 AD3d 559 [2007]). The defendant further contends that he was denied theeffective assistance of counsel due to his attorney's failure to request a competency examinationpursuant to CPL 730.30 and his attorney's failure to argue at the second Sandovalhearing (see People v Sandoval, 34 NY2d 371 [1974]) that the court should adhere to theruling of the judge who presided at the first Sandoval hearing. These contentions are alsowithout merit. There are clear indications in the record that the defendant, who participated in hisdefense, was not incapacitated (seePeople v Wilcox, 45 AD3d 1320 [2007]). Moreover, a successor judge is not bound bya prior Sandoval ruling made in the same case (see People v Evans, 94 NY2d499, 505-506 [2000]). Thus, since "an attorney is not deemed ineffective for failing to pursue anargument that had little or no chance of success" (People v Ennis, 11 NY3d 403, 415 [2008], cert denied 556US —, 129 S Ct 2383 [2009]; seePeople v Stultz, 2 NY3d 277, 287 [2004]), counsel's alleged deficiencies did notconstitute ineffective assistance of [*2]counsel.
The hearing court properly declined to suppress identification testimony. The showupprocedure in this case was conducted in close spatial and temporal proximity to the crime, for thepurpose of securing a prompt and reliable identification (see People v Ortiz, 90 NY2d533, 537 [1997]; People v Duuvon, 77 NY2d 541, 543-544 [1991]; People v Berry, 50 AD3d 1047[2008]), and the facts that police officers were standing near the defendant, and that thedefendant was wearing the hat described by the complainant, which he had been wearing at thetime he was apprehended, did not render the procedure unduly suggestive (see People v Tramble, 60 AD3d443 [2009]; People v Berry, 50 AD3d at 1048; People v Johnson, 137 AD2d719, 720 [1988]). The defendant's remaining contentions regarding the showup procedure areunpreserved for appellate review and, in any event, are without merit.
The defendant's contention that the written statement he gave to police officers after hisarrest should have been suppressed is unpreserved for appellate review and, in any event, iswithout merit.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Prudenti, P.J., Skelos, Covello and Austin, JJ., concur.