PEOPLE v. GNECO (2025)

Judgment, Supreme Court, New York County (Neil Ross, J.), rendered February 11, 2019, convicting defendant, upon his plea of guilty, of robbery in the second degree (two counts) and strangulation in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 10 years, and order, same court and Justice, entered on or about June 26, 2023, which denied defendant's CPL 440.10 motion to vacate judgment, unanimously affirmed.

The court properly denied defendant's suppression motion.  The People met their burden of going forward at the suppression hearing to show that the police acted lawfully in seizing defendant's hat and cell phone.  Although the principal police witness who arrested defendant was not present when these items were seized, a search was constitutionally authorized as a search incident to arrest regardless of whether it was conducted at the scene or at the precinct (see People v. Salinas, 151 A.D.3d 659, 659–660, 54 N.Y.S.3d 583 [1st Dept. 2017], lv denied 30 N.Y.3d 953, 67 N.Y.S.3d 136, 89 N.E.3d 526 [2017]).

We find that defendant received effective assistance of counsel 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];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]).  Defendant did not meet his burden of establishing the facts essential to his motion (see People v. Gross, 26 N.Y.3d 689, 693, 27 N.Y.S.3d 459, 47 N.E.3d 738 [2016]).  The testimony of defendant's counsel at the grand jury proceeding, whose memory was found by the court to be unreliable, did not establish that defendant was in handcuffs or wearing prison attire when he testified before the grand jury, and did not refute the credible testimony of the People's witnesses.  The hearing court's credibility determinations are entitled to great deference, and its findings should be disturbed only if they lack support in the record (see People v. Mebuin, 181 A.D.3d 469, 470, 117 N.Y.S.3d 571 [1st Dept. 2020], lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 863, 151 N.E.3d 544 [2020]).  Thus, counsel's failure to object on those grounds did not constitute ineffective assistance.  Nor did defendant's counsel at the suppression hearing provide ineffective assistance.

We perceive no basis for reducing defendant's sentence.