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.