| People v Thomas |
| 2015 NY Slip Op 06526 [131 AD3d 551] |
| August 12, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Sheldon Thomas, Appellant. |
Donald J. Yannella, New York, N.Y. (D. Michael Risinger of counsel; Lesley C.Risinger on the brief), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andSholom J. Twersky of counsel), for respondent.
Karen A. Newirth, New York, N.Y., for amicus curiae The Innocence Project,Inc.
Appeal by the defendant, by permission, from an order of the Supreme Court, KingsCounty (Del Giudice, J.), dated June 5, 2012, which, without a hearing, denied hismotion pursuant to CPL 440.10 to vacate a judgment of the same court rendered January30, 2007, convicting him of murder in the second degree, attempted murder in the seconddegree (five counts), attempted assault in the first degree (five counts), assault in thesecond degree, and criminal possession of a weapon in the second degree (two counts),upon a jury verdict, and imposing sentence.
Ordered that the order is affirmed.
The Supreme Court properly denied the defendant's motion pursuant to CPL 440.10to vacate the judgment of conviction. The court correctly concluded that the defendant'schallenge to the eyewitness evidence presented at trial was procedurally barred becausethat ground for relief had already been determined on the merits on the defendant's directappeal to this Court (see Peoplev Thomas, 65 AD3d 1170, 1171 [2009]) and that, to the extent that it was not,the record was adequate to permit review of that ground (see CPL 440.10 [2] [a],[c]; People v Cooks, 67 NY2d 100, 104 [1986]; People v Hamilton, 115 AD3d12, 20 [2014]; People vWilliams, 5 AD3d 407 [2004]; People v Hernandez, 191 AD2d 511, 512[1993]). Notwithstanding the defendant's attempt to characterize the alleged errors as"fundamental," and as a violation of his due process rights under both the federal andNew York constitutions, both the Supreme Court and this Court are bound by thelimitations embodied in CPL 440.10 (2) (People v Cuadrado, 9 NY3d 362, 365 [2007]) and "cannotbroaden the scope of the remedy afforded by CPL 440.10 beyond what the Legislatureunambiguously specified" (People v Machado, 90 NY2d 187, 192 [1997]).
Similarly, the Supreme Court correctly determined that the new evidence profferedby the defendant in support of his motion, which included several studies suggesting thatblind identification procedures are more reliable than non-blind procedures, does notqualify as "newly discovered" within the meaning of CPL 440.10 (1) (g) (People vHamilton, 115 AD3d at 20; see [*2]People vSalemi, 309 NY 208, 216 [1955]; People v Tankleff, 49 AD3d 160, 180 [2007]).
Further, the defendant's contention that he was deprived of the effective assistance ofcounsel is without merit, as he failed to demonstrate the absence of strategic or otherlegitimate explanations for counsel's allegedly deficient conduct (see People v Caban, 5 NY3d143, 152 [2005]; People vTaylor, 1 NY3d 174, 177 [2003]; People v Rivera, 71 NY2d 705, 709[1988]). Contrary to the defendant's contention, counsel was not ineffective for failing toargue that the investigating officers' use of a non-blind lineup procedure constitutedreversible error, since that argument lacked merit (see generally People v Brown, 13 NY3d 332, 341 [2009]).The Court of Appeals has not mandated the use of any specific lineup procedure, so anyprocedure may be used as long as it is not "unduly suggestive" (People v Chipp,75 NY2d 327, 335 [1990]; seePeople v Johnson, 10 NY3d 875, 878 [2008]; see also People v Washington,40 AD3d 1136 [2007]; People v Torres, 12 AD3d 539 [2004]; People v McLaughlin, 8 AD3d146, 147 [2004]; People vRobinson, 8 AD3d 95, 96 [2004]; Matter of Thomas, 189 Misc 2d 487,491 [Sup Ct, Kings County 2001]). In addition, the Legislature has not establishedguidelines for identification procedures. In sum, the evidence, the law, and thecircumstances of the case, viewed in totality as of the time of the representation, revealthat trial counsel provided meaningful representation (see People v Caban, 5NY3d at 152; People v Berroa, 99 NY2d 134, 138-139 [2002]; People vBenevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147[1981]; People vMcDonald, 79 AD3d 771, 772 [2010]). Mastro, J.P., Rivera, Dickerson andMaltese, JJ., concur.