| People v Baugh |
| 2012 NY Slip Op 00800 [91 AD3d 965] |
| Jnury 31, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v MarkBaugh, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Laura T. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.),rendered February 5, 2009, convicting him of burglary in the first degree, robbery in the firstdegree, robbery in the second degree, criminal possession of a weapon in the second degree, andcriminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was not deprived of his right to the effective assistance of counsel. Where, ashere, an ineffective assistance claim is based upon a particular error in counsel's performance, thedefendant must demonstrate "the absence of strategic or other legitimate explanations" forcounsel's allegedly deficient conduct (People v Rivera, 71 NY2d 705, 709 [1988]; see People v Caban, 5 NY3d 143,152 [2005]; People v Koki, 74AD3d 987, 988 [2010]; People vSprosta, 49 AD3d 784, 785 [2008]). Here, the defendant failed to demonstrate that therewas no strategic or legitimate explanation for defense counsel's failure to move to reopen thesuppression hearing based on certain testimony adduced at trial (see People v Sweeney, 84 AD3d1123, 1124 [2011]; People vElamin, 82 AD3d 1664, 1665 [2011]; People v Jones, 41 AD3d 736 [2007]; People v Matthews, 1 AD3d 530[2003]; People v Walker, 282 AD2d 628 [2001]). Moreover, considering the totality ofthe evidence, the law, and the circumstances of the case, trial counsel provided meaningfulrepresentation (see People v Benevento, 91 NY2d 708, 712 [1998]; People vBaldi, 54 NY2d 137, 147 [1981]; People v Walker, 282 AD2d 628 [2001]).
Contrary to the defendant's contention, the Supreme Court properly denied both of hismotions to dismiss the indictment pursuant to CPL 30.30 without conducting a hearing. Nohearing was necessary to resolve the defendant's first motion because the proof submitted by thePeople in opposition demonstrated that the total time chargeable to them was well within thesix-month time period permitted for trial readiness (see CPL 30.30 [1] [a]; People v Brown, 5 AD3d 789[2004]; People v Suarez, 259 AD2d 640 [1999]; People v Scarpinito, 186 AD2d160, 161 [1992]). Further, it was unnecessary to hold a hearing to resolve the defendant'ssubsequent pro se motion because even assuming that all additional periods of delay alleged inthat motion were determined to be chargeable to the People, the total time chargeable to thePeople would still be within the six-month time limit. Mastro, A.P.J., Florio, Eng and Sgroi, JJ.,concur.