Opinion
2014-04-16
The PEOPLE, etc., respondent, v. Alma CALDAVADO, also known as Alma Calderaro, appellant.
Mark M. Baker, New York, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and William H. Branigan of counsel), for respondent.
Mark M. Baker, New York, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and William H. Branigan of counsel), for respondent.
Peter J. Neufeld, Barry C. Scheck, M. Chris Fabricant, and Karen A. Newirth, New York, N.Y., for The Innocence Project, and Keith A. Findley and Katherine Judson, Madison, Wisconsin, for The Innocence Network, amici curiae (one brief filed).
Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (McGann, J.), dated June 18, 2012, which denied, without a hearing, her motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered April 1, 2009, convicting her of assault in the first degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
ORDERED that the order is affirmed.
Contrary to the defendant's contention on her motion pursuant to CPL 440.10 to vacate a judgment of conviction, she was not deprived of the effective assistance of counsel under either the New York Constitution or the United States Constitution ( see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674;People v. Caban, 5 N.Y.3d 143, 800 N.Y.S.2d 70, 833 N.E.2d 213). The defendant failed to demonstrate the absence of a strategic explanation for trial counsel's decision not to present certain expert testimony and instead to cross-examine the People's witnesses based on the opinion of a medical expert he received prior to trial, and also to focus on the mens rea element of assault in the first degree ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. McDonald, 79 A.D.3d 771, 772, 911 N.Y.S.2d 908;Flick v. Warren, 465 Fed.Appx. 461, 465 [6th Cir.] ). In any event, counsel's decision not to present expert testimony at trial was not unreasonable. The opinion offered by the defendant's expert did not demonstrate that the massive brain injuries the child complainant suffered, which the People's experts attributed to shaken baby syndrome, were caused by anything other than shaken baby syndrome.
That branch of the defendant's motion which was to vacate the judgment based on newly discovered evidence was properly denied, since the evidence the defendant offered was not newly discovered within the meaning of CPL 440.10(1)(g) ( see People v. Salemi, 309 N.Y. 208, 216, 128 N.E.2d 377,cert. denied350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827;People v. Kellar, 199 A.D.2d 703, 605 N.Y.S.2d 486).
We reject the defendant's claim of actual innocence, as she failed to make out “a sufficient showing of possible merit to warrant a fuller exploration by the court” ( see People v. Hamilton, 115 A.D.3d 12, 979 N.Y.S.2d 97 [internal quotation marks omitted] ). RIVERA, J.P., LEVENTHAL, CHAMBERS and LOTT, JJ., concur.