| People v Caldavado |
| 2014 NY Slip Op 02605 [116 AD3d 877] |
| April 16, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Alma Caldavado, Also Known as Alma Calderaro,Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and William H. Branigan of counsel), for respondent. Peter J. Neufeld, Barry C. Scheck, M. Chris Fabricant, and Karen A. Newirth, NewYork, N.Y., for The Innocence Project, and Keith A. Findley and Katherine Judson,Madison, Wisconsin, for The Innocence Network, amici curiae (one brieffiled).
Appeal by the defendant, by permission, from an order of the Supreme Court,Queens County (McGann, J.), dated June 18, 2012, which denied, without a hearing, hermotion pursuant to CPL 440.10 to vacate a judgment of the same court rendered April 1,2009, convicting her of assault in the first degree and endangering the welfare of a child,upon a jury verdict, and imposing sentence.
Ordered that the order is affirmed.
Contrary to the defendant's contention on her motion pursuant to CPL 440.10 tovacate a judgment of conviction, she was not deprived of the effective assistance ofcounsel under either the New York Constitution or the United States Constitution(see Strickland v Washington, 466 US 668 [1984]; People v Caban, 5 NY3d143 [2005]). The defendant failed to demonstrate the absence of a strategicexplanation for trial counsel's decision not to present certain expert testimony and insteadto cross-examine the People's witnesses based on the opinion of a medical expert hereceived prior to trial, and also to focus on the mens rea element of assault in the firstdegree (see People v Benevento, 91 NY2d 708, 712 [1998]; People v McDonald, 79 AD3d771, 772 [2010]; Flick v Warren, 465 Fed Appx 461, 465 [6th Cir 2012]). Inany event, counsel's decision not to present expert testimony at trial was notunreasonable. The opinion offered by the defendant's expert did not demonstrate that themassive brain injuries the child complainant suffered, which the People's expertsattributed to shaken baby syndrome, were caused by anything other than shaken babysyndrome.
That branch of the defendant's motion which was to vacate the judgment based onnewly discovered evidence was properly denied, since the evidence the defendant offeredwas not newly discovered within the meaning of CPL 440.10 (1) (g) (see People vSalemi, 309 NY 208, 216 [1955], cert denied 350 US 950 [1956]; Peoplev Kellar, 199 AD2d 703 [1993]).[*2]
We reject the defendant's claim of actualinnocence, as she failed to make out "a sufficient showing of possible merit to warrant afuller exploration by the court" (see People v Hamilton, 115 AD3d 12, 27 [2014] [internalquotation marks omitted]). Rivera, J.P., Leventhal, Chambers and Lott, JJ., concur.