Opinion
KA 01-00826
July 3, 2003.
Appeal from a judgment of Genesee County Court (Noonan, J.), entered March 9, 2001, convicting defendant after a jury trial of, inter alia, burglary in the second degree.
MARY ANN BLIZNIK, CLARENCE, FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (KEVIN T. FINNELL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of burglary in the second degree (Penal Law 140.25) and criminal mischief in the fourth degree (145.00 [1]). There is no merit to the contention that defendant was denied effective assistance of counsel based on deficiencies in the omnibus motion filed by defendant's initial counsel. The failure of counsel "to make a particular pretrial motion generally does not, by itself, establish ineffective assistance of counsel" ( People v. Rivera, 71 N.Y.2d 705, 709; see People v. Rodriguez, 303 A.D.2d 783; People v. Bueno, 299 A.D.2d 918, lv denied 99 N.Y.2d 612; People v. Garnsey, 288 A.D.2d 761, lv denied 97 N.Y.2d 754). In any event, defendant has not demonstrated "the absence of strategic or other legitimate explanations for counsel's failure to pursue `colorable' claims" ( People v. Garcia, 75 N.Y.2d 973, 974, quoting Rivera, 71 N.Y.2d at 709; see People v. Rodriguez, 270 A.D.2d 956, 957, lv denied 95 N.Y.2d 870; see also People v. Goncalves, 283 A.D.2d 1005, lv denied 96 N.Y.2d 918; People v. Workman, 277 A.D.2d 1029, 1031-1032, lv denied 96 N.Y.2d 764). Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 712; People v Baldi, 54 N.Y.2d 137, 147).
County Court did not abuse its discretion in summarily denying defendant's motion to suppress evidence as untimely made ( see CPL 255.20; People v. Adams, 252 A.D.2d 980, lv denied 92 N.Y.2d 947; People v. Randall, 239 A.D.2d 940, lv denied 90 N.Y.2d 909; People v. Stafford, 79 A.D.2d 435, 440, appeal dismissed 54 N.Y.2d 760). We reject the contention that defendant demonstrated good cause for failing to move to suppress the evidence within 45 days of arraignment ( see 255.20 [3]; People v. Hoffman, 283 A.D.2d 928, 929, lv denied 96 N.Y.2d 919).
The record does not support defendant's contention that the People violated their obligations under Brady v. Maryland ( 373 U.S. 83) to disclose evidence of a promise of leniency made to a prosecution witness in exchange for his cooperation or testimony. Counsel for codefendant cross-examined the witness in question with regard to the quid pro quo, expressly referring to the terms of the People's agreement with the witness. Moreover, counsel for defendant, like counsel for codefendant, commented upon the matter on summation. Those facts belie defendant's contention that the matter was not disclosed at any time prior to the People's summation. In any event, reversal is not required inasmuch as defendant had a meaningful opportunity to use the allegedly exculpatory material on cross-examination ( see People v. Cortijo, 70 N.Y.2d 868, 870; People v Middlebrooks, 300 A.D.2d 1142, 1143-1144, lv denied 99 N.Y.2d 630; People v. Bonilla, 298 A.D.2d 871, lv denied 99 N.Y.2d 555).
We have considered defendant's remaining contentions and conclude that they are without merit.