| People v Lewis |
| 2016 NY Slip Op 03989 [139 AD3d 571] |
| May 24, 2016 |
| Appellate Division, First Department |
[*1](May 24, 2016)
| The People of the State of New York,Respondent, v Gil Lewis, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel),for respondent.
Order, Supreme Court, New York County (Gregory Carro, J.), entered on or aboutJanuary 15, 2014, which denied defendant's CPL 440.10 motion to vacate a judgment ofconviction rendered April 4, 2000, unanimously affirmed.
Initially, we note that defendant's claims generally stem from an allegedinconsistency between a detective's hearing and trial testimony, and that all of thistestimony was part of the record of defendant's 2004 appeal. In any event, assuming forthe sake of argument that defendant's claims could not have been fully raised on directappeal (see CPL 440.10 [2] [c]), the court properly exercised its discretion indenying his motion on the ground that on his prior 440.10 motion, he "was in a positionadequately to raise the ground[s] . . . underlying the present motion but didnot do so" (CPL 440.10 [3] [c]).
In addition, the record supports the court's alternative holding, denying the motion onthe merits. Summary denial was proper because defendant's allegations did not raise anyfactual dispute sufficient to warrant a hearing (see CPL 440.30 [4] [b]; People v Samandarov, 13NY3d 433, 439-440 [2009]; People v Satterfield, 66 NY2d 796, 799-800[1985]).
Defendant contended that a detective testified falsely at trial that he personallycopied a recording of a certain phone conversation, contradicting his testimony at apretrial hearing that another detective on his team had done so. On the contrary, thedetective's trial testimony clearly indicates that he meant only that someone on his teamhad made the copy. Accordingly, defendant's claim that the People presented "false"testimony is entirely without merit.
The court correctly rejected defendant's ineffective assistance of counsel claims,since he failed to rebut the "presum[ption] that counsel acted in a competent manner andexercised professional judgment" (People v Rivera, 71 NY2d 705, 709 [1988]).Since the purported inconsistency was illusory, trial counsel was not deficient in failingto exploit it on cross-examination. Likewise, counsel was not ineffective in failing toobject to the recording under the best evidence rule, which was inapplicable (see e.g. People v Dicks, 100AD3d 528 [2012]), or in failing to request a missing witness charge as tounidentified detectives who were present during the creation of other copies ofrecordings, in the absence of any showing that these detectives would have providednoncumulative testimony (People v Savinon, 100 NY2d 192, 196 [2003]).Accordingly, defendant has not shown that any of counsel's alleged omissions fell belowan [*2]objective standard of reasonableness, or that theydeprived defendant of a fair trial or affected the outcome of the case (see People vBenevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466US 668 [1984]). Concur—Sweeny, J.P., Renwick, Moskowitz, Kapnick andGesmer, JJ.