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People v. Cabo

Appellate Division of the Supreme Court of New York, Second Department
Jun 24, 1996
228 A.D.2d 689 (N.Y. App. Div. 1996)

Opinion

June 24, 1996

Appeal from the Supreme Court, Kings County (Juviler, J.).


Ordered that the judgment is affirmed.

We reject the defendant's contention that he was denied the effective assistance of counsel. Although his trial counsel failed to make a 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. Allen, 193 A.D.2d 609, lv denied 82 N.Y.2d 890). Here, the record indicates that there was no colorable basis for a suppression motion ( see, People v Garcia, 75 N.Y.2d 973; People v. Allen, supra, at 610; People v Sullivan, 153 A.D.2d 223, 231). Because the defendant failed to make a showing that 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 ( People v Rivera, 71 N.Y.2d 705, 709; People v. Allen, supra). Bracken, J.P., Thompson, Krausman and Florio, JJ., concur.


Summaries of

People v. Cabo

Appellate Division of the Supreme Court of New York, Second Department
Jun 24, 1996
228 A.D.2d 689 (N.Y. App. Div. 1996)
Case details for

People v. Cabo

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. PAUL CABO, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 24, 1996

Citations

228 A.D.2d 689 (N.Y. App. Div. 1996)
646 N.Y.S.2d 11

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