| People v Zeh |
| 2012 NY Slip Op 08822 [101 AD3d 1353] |
| December 20, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Vincent Zeh,Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie (Jacqueline L. Spratt, New YorkProsecutors Training Institute, Albany, of counsel), for respondent.
Malone Jr., J. Appeal, by permission, from an order of the County Court of Ulster County(McGinty, J.), entered October 14, 2010, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment convicting him of the crime of murder in the second degree,without a hearing.
Following a jury trial, defendant was convicted of killing his estranged wife in 1997. Weaffirmed defendant's conviction on direct appeal (289 AD2d 692 [2001]). In addition, this Courtfound that defendant's challenge to the adequacy of his trial representation should be addressed ina posttrial motion pursuant to CPL article 440 (id. at 695). Defendant thereafter moved tovacate the judgment pursuant to CPL 440.10 on the basis that he did not receive the effectiveassistance of counsel. County Court denied defendant's motion without a hearing. Defendant nowappeals, with permission.
Defendant contends that County Court improperly denied his CPL 440.10 applicationwithout first conducting a hearing. A hearing is not required on every motion brought pursuant toCPL 440.10, and it is within the trial court's sound discretion to determine whether a hearing isnecessary in a particular case (seePeople v Snyder, 91 AD3d 1206, 1214 [2012], lv denied 19 NY3d 968 [2012])."[T]o establish ineffective assistance, a defendant must demonstrate the absence of strategic orother legitimate explanations for counsel's allegedly deficient conduct" (People v Caban, 5 NY3d 143, 152[2005] [internal quotation marks and citation omitted]; see People v Rivera, 71 NY2d705, 709 [1988]; People v Snyder, 91 AD3d at 1214). Moreover, the benefit of a CPL440.10 motion is that the defendant is able to develop a complete record containing factualevidence in support of his or her claims that counsel's representation was deficient (seePeople v Jones, 55 NY2d 771, 773 [1981]; People v Smith, 305 AD2d 853, 854[2003], lv denied 100 NY2d 624 [2003]).
Here, the claimed inadequacies of counsel are the failure to seek an adjournment after beingserved with a lengthy Brady disclosure on the eve of trial, the failure to make anydiscovery requests or a specific demand for Brady material and the failure to make anypretrial motions to suppress certain evidence against defendant. Defendant's motion papers didnot present any factual evidence to develop the record with regard to any of the allegeddeficiencies of trial counsel beyond the trial record. In response to defendant's motion, the Peoplesubmitted the affidavit of trial counsel offering an explanation of his trial strategy and the reasonsbehind his decision to forgo the motions now identified by defendant. In particular, based upondefendant's intention to testify at trial, counsel made a decision to not pursue suppressionmotions, thereby avoiding the potential that defendant's testimony at the suppression hearingscould be used to undermine his trial testimony. Additionally, counsel averred that after severaldiscussions with defendant, they decided to pursue a defense strategy that maintained defendant'salibi and emphasized that, despite the questionable police tactics, he had not confessed and theinvestigation had yielded only circumstantial evidence against him. Counsel presented strategicexplanations for the alleged errors, which have not been controverted by defendant, and affirmedthat he had sufficient time to diligently review the Brady material. Inasmuch as defendanthas not demonstrated that counsel's trial approach was the result of incompetence or imprudencerather than merely unsuccessful tactics, we find no error in County Court's denial of the motionwithout a hearing (see People vWeatherspoon, 86 AD3d 792, 794 [2011], lv denied 17 NY3d 905 [2011]; People v Bethune, 80 AD3d 1075,1076-1077 [2011], lv denied 17 NY3d 792 [2011]).
Mercure, J.P., Spain, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed.