Opinion
2011–11756 Ind. No. 3293/10
08-18-2021
The PEOPLE, etc., respondent, v. Abraham Angel VASQUEZ, also known as Juan Velazquez, appellant.
Janet E. Sabel, New York, N.Y. (David Crow and Friedman Kaplan Seiler & Adelman LLP [Eric Corngold and Anil K. Vassanji], of counsel), for appellant, and appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Amy Appelbaum of counsel), for respondent. Patricia Pazner, New York, N.Y. (A. Alexander Donn of counsel), former appellate counsel.
Janet E. Sabel, New York, N.Y. (David Crow and Friedman Kaplan Seiler & Adelman LLP [Eric Corngold and Anil K. Vassanji], of counsel), for appellant, and appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Amy Appelbaum of counsel), for respondent.
Patricia Pazner, New York, N.Y. (A. Alexander Donn of counsel), former appellate counsel.
LEONARD B. AUSTIN, J.P., VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ON MOTION Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated January 17, 2018 ( People v. Vasquez, 157 A.D.3d 832, 66 N.Y.S.3d 640 ), affirming a judgment of the Supreme Court, Kings County (Neil Jon Firetog, J.), rendered December 1, 2011. By decision and order on motion of this Court dated December 11, 2018, the appellant was granted leave to serve and file a brief on the issue of whether there was error in connection with the handling of two jury notes under People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189, and the application was held in abeyance in the interim. The parties have now filed their respective briefs. Justice Christopher has been substituted for former Justice Balkin (see 22 NYCRR 1250.1 [b]). ORDERED that the application is denied.
The defendant argues that he was deprived of the effective assistance of appellate counsel because his counsel failed to argue on appeal that the trial court's handling of jury notes violated People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189.
The constitutional requirement that a defendant be provided with the effective assistance of appellate counsel is met where appellate counsel provides "meaningful representation" ( People v. Borrell, 12 N.Y.3d 365, 368, 881 N.Y.S.2d 637, 909 N.E.2d 559 ; see People v. Stultz, 2 N.Y.3d 277, 778 N.Y.S.2d 431, 810 N.E.2d 883 ). Here, contrary to the defendant's contention, the record does not present a " ‘clear-cut’ " violation of People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 in the trial court's handling of jury notes ( People v. Borrell, 12 N.Y.3d at 369, 881 N.Y.S.2d 637, 909 N.E.2d 559, quoting People v. Turner, 5 N.Y.3d 476, 481, 806 N.Y.S.2d 154, 840 N.E.2d 123 ; see People v. Nealon, 26 N.Y.3d 152, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ). Under the circumstances, appellate counsel's failure to assert an O'Rama violation did not deprive the defendant of effective assistance of counsel (see People v. Borrell, 12 N.Y.3d at 368–369, 881 N.Y.S.2d 637, 909 N.E.2d 559 ).
The remaining contention raised in the defendant's pro se supplemental brief is without merit.
Accordingly, the defendant received meaningful representation on appeal.
AUSTIN, J.P., BRATHWAITE NELSON, IANNACCI and CHRISTOPHER, JJ., concur.