Opinion
13140 Ind. No. 1725/96 Case No. 2020-00422
02-16-2021
The PEOPLE of the State of New York, Respondent, v. Marilyn MEZQUITA, Defendant–Appellant.
Raymond J. Aab, New York, for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.
Raymond J. Aab, New York, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.
Manzanet–Daniels, J.P., Webber, Oing, Kennedy, JJ.
Order, Supreme Court, New York County (Roger S. Hayes, J.), entered on or about June 18, 2019, which denied defendant's CPL 440.10 motion to vacate a judgment of conviction rendered December 19, 1996, unanimously affirmed.
Defendant's contention that she received ineffective assistance of counsel based on an alleged conflict is speculative and unsubstantiated (see People v. Konstantinides, 14 N.Y.3d 1, 12, 896 N.Y.S.2d 284, 923 N.E.2d 567 [2009] ). Although the same law firm represented defendant and one of her codefendants during the early stages of the proceedings, the codefendant retained separate counsel five months before defendant pleaded guilty. To the extent that there was a conflict, it was merely a potential one, and defendant has failed to demonstrate that it impacted her defense (see People v. Wright, 27 N.Y.3d 516, 35 N.Y.S.3d 286, 54 N.E.3d 1157 [2016] ). Defendant posits a hypothetical situation that might have required her to obtain new counsel, but that situation never arose. To the extent that defendant is alleging that either of her attorneys rendered ineffective assistance by failing to advise her of possible defenses, that claim is conclusory and lacking factual support.
Regardless of whether defendant's remaining claims are cognizable on a CPL 440.10 motion in the first place, those claims are unpreserved because she did not include them in her motion (see People v. Young, 150 A.D.3d 429, 51 N.Y.S.3d 409 [1st Dept. 2017], lv denied 29 N.Y.3d 1136, 64 N.Y.S.3d 686, 86 N.E.3d 578 [2017] ), and we decline to review them in the interest of justice. As an alternative holding, we find that defendant's claim under ( People v. Peque, 22 N.Y.3d 168, 193–197, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], cert denied 574 U.S. 840, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014] ) is unavailing because Peque does not apply retroactively to convictions that became final before it was decided ( Young, 150 A.D.3d at 429 ), and we also reject defendant's cruel and unusual punishment claim (see People v. Papanye, 159 A.D.3d 482, 72 N.Y.S.3d 56 [1st Dept. 2018], lv denied 31 N.Y.3d 1085, 79 N.Y.S.3d 107, 103 N.E.3d 1254 [2018] ).