Opinion
May 11, 1995
Appeal from the Supreme Court, New York County (Jerome Hornblass, J.).
In a judgment, entered on February 22, 1988, defendant, following a jury trial, was convicted of second degree robbery and sentenced, as a predicate felon, to 6 1/2 to 13 years. On appeal, this Court, rejecting defendant's claims that he had been denied the effective assistance of counsel and that the People had failed to comply with their Brady and Rosario obligations, unanimously affirmed ( 162 A.D.2d 146, lv denied 76 N.Y.2d 895). In the meantime, defendant had moved pursuant to CPL 440.10 to vacate the judgment of conviction on the ground that he had not received adequate representation at trial and that the prosecution had not made disclosure of police reports, statements, and other material. This motion was denied in a written opinion in which the Trial Judge found defendant's arguments to be meritless. Defendant then unsuccessfully sought leave to appeal to this Court.
In November of 1992, nearly three years later, defendant moved to renew his motion to vacate the judgment of conviction, urging the existence of newly discovered facts. After the motion was summarily denied by the Trial Judge, defendant obtained leave to appeal to this Court. Defendant, who based his latest contention that the People did not make available to him all of the Rosario material in their possession on the purported existence of some scratch notes made by the arresting officer of a statement taken from the complainant, concedes in his brief that he learned of the alleged notes during trial. Thus, even assuming that there were such notes, and the record does not support defendant's position in that respect, and that these notes were not part of the police reports, statements, and other material that he has previously urged that the People neglected to disclose, the fact is that defendant has not set forth any excuse, reasonable or otherwise, for his failure to demonstrate facts that, although existing at the time of the original application, were not then known to the movant (Matter of Beiny, 132 A.D.2d 190, 209-210, lv dismissed 71 N.Y.2d 994).
As to defendant's contention that he was deprived of the effective assistance of counsel, this claim has been denied in the direct appeal from the judgment herein. Additionally, it is settled that a party who claims that he has not been adequately represented must establish not only that counsel's assistance was not meaningful but that such lack of competence negatively impacted upon the outcome of the case (People v Rose, 162 A.D.2d 240, 241, lv denied 76 N.Y.2d 864). Defendant has failed to make such a showing.
Concur — Ross, J.P., Nardelli, Williams, Tom and Mazzarelli, JJ.