People v. Alicea

19 Citing cases

  1. Alicea v. Senkowski

    98 Civ. 7020 (LAK) (S.D.N.Y. Jun. 25, 2001)

    The Appellate Division, however, concluded otherwise and reinstated the conviction. People v. Alicea, 229 A.D.2d 80, 656 N.Y.S.2d 2 (1st Dept.), leave to appeal denied, 90 N.Y.2d 890, 662 N.Y.S.2d 433 (1997). Petitioner then brought this habeas petition in which he makes principally the same ineffective assistance argument mounted previously in the state courts.

  2. People v. Cyrus

    2006 N.Y. Slip Op. 30254 (N.Y. Sup. Ct. 2006)   Cited 1 times

    To sustain an ineffective assistance claim under the State standard, the defendant must establish that his counsel's performance was so deficient that he was denied meaningful representation. People v. Baldi, 54 NY2d 137; People v. Alicea, 229 AD2d 80 (1st Dept 1997); People v. Nickelson, 174 AD2d 492 (1st Dept 1991). In turn, that means that he must show that counsel's errors were so egregious, inexplicable, and prejudicial that they deprived defendant of a fair trial.

  3. People v. Personal

    153 A.D.3d 1561 (N.Y. App. Div. 2017)   Cited 13 times

    tim gave testimony at trial tending to establish that the showup identification procedures were unduly suggestive (see People v. Gray, 27 N.Y.3d 78, 83–84, 29 N.Y.S.3d 888, 49 N.E.3d 1180 ; People v. Robles, 116 A.D.3d 1071, 1071, 983 N.Y.S.2d 885, lv. denied 24 N.Y.3d 1088, 1 N.Y.S.3d 15, 25 N.E.3d 352 ; People v. Elamin, 82 A.D.3d 1664, 1665, 919 N.Y.S.2d 661, lv. denied 17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097 ; see generally People v. Carver, 27 N.Y.3d 418, 420–421, 33 N.Y.S.3d 857, 53 N.E.3d 734 ). Even construing counsel's posttrial assertion that he had been "somewhat asleep at the switch" with respect to the possibility of reopening the hearing as an admission that he did not make a conscious decision to forgo the motion, we conclude that his subjective reasoning is immaterial, and that declining to make the motion was consistent with the actions of a reasonably competent attorney (see generally People v. Ambers, 26 N.Y.3d 313, 317–318, 22 N.Y.S.3d 400, 43 N.E.3d 757 ; People v. Alicea, 229 A.D.2d 80, 85–86, 656 N.Y.S.2d 2, lv. denied 90 N.Y.2d 890, 662 N.Y.S.2d 433, 685 N.E.2d 214 ). Furthermore, in view of the ample evidence apart from the victim's pretrial identification establishing defendant's identity as one of the perpetrators of the robbery, we conclude that any error by counsel in failing to move to reopen the hearing "was not so egregious and prejudicial as to deprive defendant of a fair trial" ( People v. Coley, 148 A.D.3d 1651, 1652, 51 N.Y.S.3d 741, lv. denied 29 N.Y.3d 1030, 62 N.Y.S.3d 299, 84 N.E.3d 971 [internal quotation marks omitted]; see generally People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 ). Defendant further contends that the court improperly influenced the jury's deliberations by instructing the jury to resume deliberating after it returned an incomplete, and therefore legally defective, verdict relative to codefendant Evans. That contention is not preserved for our review because defendant did not join in the mistrial motion made by codefendant

  4. People v. Person

    2017 N.Y. Slip Op. 6734 (N.Y. App. Div. 2017)

    We further conclude that defendant has not demonstrated the absence of a legitimate explanation for counsel's alleged error in failing to move to reopen the suppression hearing when the victim gave testimony at trial tending to establish that the showup identification procedures were unduly suggestive (see People v Gray, 27 NY3d 78, 83-84; People v Robles, 116 AD3d 1071, 1071, lv denied 24 NY3d 1088; People v Elamin, 82 AD3d 1664, 1665, lv denied 17 NY3d 794; see generally People v Carver, 27 NY3d 418, 420-421). Even construing counsel's posttrial assertion that he had been "somewhat asleep at the switch" with respect to the possibility of reopening the hearing as an admission that he did not make a conscious decision to forgo the motion, we conclude that his subjective reasoning is immaterial, and that declining to make the motion was consistent with the actions of a reasonably competent attorney (see generally People v Ambers, 26 NY3d 313, 317-318; People v Alicea, 229 AD2d 80, 85-86, lv denied 90 NY2d 890). Furthermore, in view of the ample evidence apart from the victim's pretrial identification establishing defendant's identity as one of the perpetrators of the robbery, we conclude that any error by counsel in failing to move to reopen the hearing "was not so egregious and prejudicial as to deprive defendant of a fair trial" (People v Coley, 148 AD3d 1651, 1652, lv denied 29 NY3d 1030 [internal quotation marks omitted]; see generally People v Benevento, 91 NY2d 708, 713-714). Defendant further contends that the court improperly influenced the jury's deliberations by instructing the jury to resume deliberating after it returned an incomplete, and therefore legally defective, verdict relative to codefendant Evans. That contention is not preserved for our review because defendant did not join in the mistrial motion made by codefendant Thompson or otherwise specifically object to the court's handling of the issue (see generally CPL 470.05 [2]; People v Buckley,

  5. People v. Terry

    85 A.D.3d 1485 (N.Y. App. Div. 2011)   Cited 33 times

    However, the emergency room records were admitted into evidence and, during his summation, defense counsel highlighted this exact passage to the jury and urged it to take the report into account when assessing the victim's credibility. Thus, the manner in which counsel addressed the victim's prior inconsistent statement appears to have been a tactical decision ( see People v Barnes, 29 AD3d 390, 390-391, lv denied 7 NY3d 785; People v Alicea, 229 AD2d 80, 88-89, lv denied 90 NY2d 890; see generally People v Ryan, 90 NY2d 822, 823-824; compare People v Cantave, 83 AD3d 857, 858-859). Likewise, defendant has failed to demonstrate that his counsel lacked a legitimate reason for not pursuing an insanity defense ( see People v Kulakov, 72 AD3d 1271, 1274, lv denied 15 NY3d 775; People v Wheeler, 249 AD2d 774, 775).

  6. People v. Koonce

    68 A.D.3d 424 (N.Y. App. Div. 2009)

    The court properly denied defendant's motion to vacate the judgment, made on the ground of ineffective assistance of counsel. The submissions on the motion, taken together with the trial record, establish that defendant received effective assistance under both the state and federal standards ( see People v Benevento, 91 NY2d 708, 713-714; see also Strickland v Washington, 466 US 668). Counsel reasonably declined to use recorded conversations between the victim and defendant's cousin for impeachment purposes since aspects of the tape were damaging to defendant and would have opened the door to additional evidence of defendant's guilt ( see People v Alicea, 229 AD2d 80, 89, lv denied 90 NY2d 890). Counsel could have reasonably concluded that the disadvantages of using this tape outweighed its impeachment value. Furthermore, counsel was not obligated to make the same choice as the attorney who represented defendant at his first trial, which ended in a hung jury; the second attorney could have reasonably concluded that a different tactic was more likely to lead to an acquittal.

  7. People v. Sutton

    43 A.D.3d 133 (N.Y. App. Div. 2007)   Cited 10 times

    Moreover, the fact that counsel did not secure Simmons's appearance before the grand jury is, by itself, insufficient to demonstrate ineffective assistance of counsel ( see People v Wiggins, 89 NY2d 872, 873). In order to show ineffective assistance of counsel, Simmons must establish that his attorney's failure to effectuate his intent to testify before the grand jury resulted in prejudice to him ( see People v Alicea, 229 AD2d 80, lv denied 90 NY2d 890). Simmons does not make any showing of what would have been presented to the grand jury had he testified or that his appearance would have altered the final result. He does not state what testimony he would have offered or what evidence he would have sought to admit that might lead one to conclude that having heard it, the grand jury would have arrived at a different decision (CPL 190.

  8. People v. Kennedy

    7 A.D.3d 272 (N.Y. App. Div. 2004)   Cited 2 times

    The court properly denied defendant's motion to vacate the judgment pursuant to CPL 440.10 on the ground of ineffective assistance of counsel ( see People v. Satterfield, 66 N.Y.2d 796, 799-800). Even assuming that trial counsel's failure to request submission of manslaughter in the second degree or criminally negligent homicide as lesser included offenses was not a strategic choice, we find that counsel's omission did not deprive defendant of a fair trial or affect the outcome ( see People v. Hobot, 84 N.Y.2d 1021, 1024; People v. Alicea, 229 A.D.2d 80, 89-90, lv denied, 90 N.Y.2d 890; see also Strickland v. Washington, 466 U.S. 668). On defendant's direct appeal, this Court concluded that defendant's guilt of murder in the second degree was established at trial by overwhelming evidence ( People v. Kennedy, 294 A.D.2d 283, lv denied 98 N.Y.2d 698). There is no reason to believe that the jury would have convicted defendant of anything less than intentional murder no matter what lesser offenses had been submitted ( see People v. Ruiz, 223 A.D.2d 418, lv denied 88 N.Y.2d 853). Moreover, the court did submit first-degree manslaughter, and the jury rejected that option when it convicted defendant of murder. It is well settled that under such circumstances, failure to submit the more remote lesser offenses of second-degree manslaughter and criminally negligent homicide would be deemed harmless ( see e.g. People v. Vega, 155 A.D.2d 632, lv denied 75 N.Y.2d 819). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FI

  9. People v. Adorno

    297 A.D.2d 747 (N.Y. App. Div. 2002)

    ORDERED that the judgment is affirmed. The defendant's contention that he was deprived of the effective assistance of counsel is without merit (see People v. Flores, 84 N.Y.2d 184; People v. Baldi, 54 N.Y.2d 137; People v. Alicea, 229 A.D.2d 80). FEUERSTEIN, J.P., SMITH, FRIEDMANN and ADAMS, JJ., concur.

  10. People v. Pratt [4th Dept 2000

    270 A.D.2d 958 (N.Y. App. Div. 2000)   Cited 1 times

    Defendant's conviction is supported by legally sufficient evidence and the verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). The contention of defendant that he was entitled to a justification charge is not preserved for our review ( see, CPL 470.05), and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]). Assuming, arguendo, that defense counsel erred in failing to establish the unavailability of the declarant of an alleged statement against penal interest, we conclude that defendant failed to show "`that there is a reasonable probability that, but for counsel's * * * error, the result of the proceeding would have been different'" ( People v. Alicea, 229 A.D.2d 80, 87, lv denied 90 N.Y.2d 890, quoting Strickland v. Washington, 466 U.S. 668, 694).