| People v Diallo |
| 2015 NY Slip Op 07855 [132 AD3d 1010] |
| October 28, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Abdul Diallo, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Anna Pervukhin of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Daniel Bresnahan of counsel), for respondent.
Appeals by the defendant (1) from a judgment of the Supreme Court, Queens County(Griffin, J.), rendered September 26, 2011, convicting him of assault in the seconddegree, assault in the third degree, unlawful fleeing from a police officer in a motorvehicle in the second degree, and reckless endangerment in the second degree, upon ajury verdict, and imposing sentence, and (2), by permission, as limited by his brief, fromso much of an order of the same court, dated October 31, 2013, as denied, without ahearing, that branch of his motion which was pursuant to CPL 440.10 to vacate thejudgment rendered September 26, 2011.
Ordered that the judgment is affirmed; and it is further,
Ordered that the order is affirmed insofar as appealed from.
Following his convictions, the defendant filed a direct appeal and subsequentlymoved, inter alia, for an order pursuant to CPL 440.10 to vacate his judgment ofconviction on the grounds that he was denied the effective assistance of trial counsel, andthat he was unable to understand or meaningfully participate in the proceedings becausehe was not provided with an interpreter he could understand. The Supreme Court deniedthe motion without a hearing, and leave to appeal from that order was granted by thisCourt and consolidated with the direct appeal.
Some of the defendant's allegations of ineffective assistance of counsel involvematters appearing on the record, while others involve matters that are outside the record.As the appeal from the denial of the defendant's motion pursuant to CPL 440.10 is beforeus, we have reviewed all of the defendant's allegations in totality in order to assess theoverall fairness of the process as a whole (see People v Maxwell, 89 AD3d 1108, 1109 [2011]; seealso People v Benevento, 91 NY2d 708, 714 [1998]).
The defendant's contentions regarding the competency of his interpreter were neverbrought to the trial court's attention and have therefore been waived (see People vRobles, 86 NY2d 763, 765 [1995]; People v Kowlessar, 82 AD3d 417 [2011]; People vAbreu, 248 AD2d 124, 125 [1998]; People v Hong Ki Lee, 202 AD2d 443[1994]). Nevertheless, inasmuch as the defendant contends that his trial counsel [*2]failed to demand that the interpreter be replaced, we haveconsidered the defendant's allegations as part of his ineffective assistance of counselclaim (see People v Wong, 256 AD2d 724, 725 [1998]).
We are satisfied that the defendant received the effective assistance of counsel underthe state and federal standards (see People v Benevento, 91 NY2d at 713-714;see also Strickland v Washington, 466 US 668 [1984]). The defendant has notshown that counsel's alleged failures fell below an objective standard of reasonablenessor that, viewed individually or collectively, the alleged deficiencies deprived him of a fairtrial (see People v Benevento, 91 NY2d 708 [1998]; People v Baldi, 54NY2d 137 [1981]).
To obtain a hearing on a motion to vacate a judgment of conviction, "it is thedefendant's burden as movant to come forward with allegations that raise a triable issueof fact sufficient to challenge the presumed validity of a judgment of conviction" (People v Waymon, 65 AD3d708, 709 [2009]). Here, all of the defendant's allegations are either based onunsubstantiated conclusory allegations, on speculation, or on self-serving statements thatare not borne out by the record. Among other things, the degree to which the defendantwas able to participate in the proceedings through the interpreter can be adequatelyascertained through a review of the trial transcript as a whole, including the defendant'sdirect testimony and cross-examination (see People v Mosquero, 128 AD3d 985, 985-986 [2015];People v Rios, 57 AD3d501, 502 [2008]). Therefore, his motion pursuant to CPL 440.10 was properlydenied without a hearing (see People v Satterfield, 66 NY2d 796, 799 [1985];People v Brown, 56 NY2d 242, 246-247 [1982]; People v Townsend, 120 AD3d595 [2014]). Dillon, J.P., Chambers, Hall and Hinds-Radix, JJ., concur.