Opinion
11840 Ind. 3477/17
07-16-2020
The PEOPLE of the State of New York, Respondent, v. Amin POWELL, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Anjali Pathmanathan of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Anjali Pathmanathan of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent.
Manzanet–Daniels, J.P., Mazzarelli, Gesmer, Oing, Singh, JJ.
Judgment, Supreme Court, New York County (Curtis J. Farber, J.), rendered June 7, 2018, as amended June 18, 2018, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to a term of five years, unanimously affirmed.
Defendant's claim that his attorney rendered ineffective assistance by failing to go forward with the litigation of allegedly meritorious suppression issues before defendant pleaded guilty is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ). These matters include plea bargaining considerations, counsel's strategic evaluation of the likelihood of obtaining suppression of evidence, and defendant's personal input into accepting the offered disposition. Accordingly, because defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claim may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ). The record establishes that counsel knew that the People had disclosed an error in a search warrant affidavit, and that prior counsel had obtained a hearing to challenge the warrant. However, the record fails to establish that the error in the affidavit was dispositive and would have led to suppression of the evidence recovered under the warrant, or that there was no "strategic or other legitimate explanation" for not going forward with the hearing before defendant pleaded guilty ( Rivera at 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ).