Opinion
May 3, 1993
Appeal from the Supreme Court, Queens County (Appelman, J.).
Ordered that the judgment is affirmed.
We reject the defendant's contention that he was denied the effective assistance of counsel. While it appears that his trial counsel failed to make a timely motion to suppress the physical evidence, it is settled that "a failure to move to suppress physical evidence does not, in and of itself, establish the ineffective assistance of counsel" (People v Taylor, 157 A.D.2d 617, 618; see also, People v De Mauro, 48 N.Y.2d 892; People v Hill, 122 A.D.2d 810). Absent a showing that the defense counsel had no legitimate explanation for failing to make the suppression motion, it should "be presumed that counsel acted in a competent manner and exercised professional judgment" in not pursuing such a motion (see, People v Rivera, 71 N.Y.2d 705, 709). Indeed, the present record suggests that there may not have been any colorable basis for a suppression motion (see, People v Garcia, 75 N.Y.2d 973; People v Sullivan, 153 A.D.2d 223, 231). In addition, there is no merit to the defendant's claim that his attorney had any conflict of interest substantially related to the conduct of the defense (see, People v McDonald, 68 N.Y.2d 1, 9). Sullivan, J.P., Lawrence, Eiber and Santucci, JJ., concur.