PEOPLE v. VASQUEZ (2025)

Judgment, Supreme Court, Bronx County (Judith Lieb, J.), rendered July 7, 2011, convicting defendant, after a jury trial, of manslaughter in the first degree and attempted assault in the first degree, and sentencing him to an aggregate term of 221/212 years, unanimously affirmed.  Order, same court and Justice, entered on or about May 12, 2022, which, to the extent appealed from as limited by the briefs, denied defendant's CPL 440.10 motion to vacate his conviction based on ineffective assistance of counsel, unanimously affirmed.

Defendant received effective assistance of counsel under the state and federal standards (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984];  People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998]).  The evidence at the CPL 440.10 hearing established that counsel was not ineffective for not moving to strike witness testimony after the witness, on cross-examination, invoked his Fifth Amendment privilege on questions collateral to his direct examination.  The court found trial counsel's testimony credible that the questions were related to impeachment and thus collateral (see People v. Walker, 188 A.D.3d 1274, 1274, 134 N.Y.S.3d 461 [2d Dept. 2020], lv denied 36 N.Y.3d 1060, 141 N.Y.S.3d 750, 165 N.E.3d 676 [2021]).  Counsel was not obligated to make a motion that was likely to fail (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005]).  Nor was counsel's strategic decision to pursue as a theory of defense that there was a single shooter based on the existence of a bullet shell outside of the immediate area of the shooting which lacked any trace evidence linking it to the crime, coupled with witness's testimony of a single shooter, ineffective assistance.  True ineffectiveness is not equivalent to mere losing tactics.  That defendant disagrees with counsel's strategy or tactics does not make counsel's representation ineffective, even if it was ultimately unsuccessful (see People v. Honghirun, 29 N.Y.3d 284, 290, 56 N.Y.S.3d 275, 78 N.E.3d 804 [2017];  People v. Matthews, 228 A.D.3d 521, 522–523, 211 N.Y.S.3d 377 [1st Dept. 2024], lv denied 42 N.Y.3d 1021, 221 N.Y.S.3d 493, 246 N.E.3d 936 [2024]).  With respect to defendant's contention that the People's cross-examination of his mother exceeded the scope of direct examination, “in a criminal case, a party may prove through cross-examination any relevant proposition, regardless of the scope of direct examination” (People v. Joslyn, 103 A.D.3d 1254, 1256, 959 N.Y.S.2d 369 [4th Dept. 2013], lv denied 21 N.Y.3d 944, 968 N.Y.S.2d 7, 990 N.E.2d 141 [2013], quoting People v. Sanders, 2 A.D.3d 1420, 1420–1421, 768 N.Y.S.2d 900 [4th Dept. 2003];  see People v. Hadden, 95 A.D.2d 725, 726, 464 N.Y.S.2d 134 [1st Dept. 1983]).  Nor did the People's single, qualified misrepresentation of the mother's testimony during summation rise to a “flagrant and pervasive level of misconduct” that deprived defendant of due process or rendered counsel ineffective (People v. Lively, 163 A.D.3d 1466, 1469, 82 N.Y.S.3d 671 [4th Dept. 2018], lv denied 32 N.Y.3d 1065, 89 N.Y.S.3d 120, 113 N.E.3d 954 [2018];  People v. Villa, 174 A.D.3d 438, 439, 103 N.Y.S.3d 425 [1st Dept. 2019], lv denied 34 N.Y.3d 1019, 114 N.Y.S.3d 753, 138 N.E.3d 482 [2019]).

Defendant's claim that he was denied due process when the trial court limited the time frame of his rebuttal testimony is unpreserved, and we decline to reach in the interest of justice (see People v. Elston, 118 A.D.3d 538, 539, 988 N.Y.S.2d 154 [1st Dept. 2014], lv denied 24 N.Y.3d 960, 996 N.Y.S.2d 219, 20 N.E.3d 999 [2014];  People v. King, 116 A.D.3d 424, 425, 984 N.Y.S.2d 9 [1st Dept. 2014], lv denied 24 N.Y.3d 962, 996 N.Y.S.2d 221, 20 N.E.3d 1001 [2014];  see also People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006]).  As an alternative holding, the temporal restriction placed on the testimony to the 24 hours prior to the shooting was neither arbitrary nor disproportionate to the purpose of allowing defendant to demonstrate that he did not have guns at his home shortly before the shooting (see People v. Williams, 81 N.Y.2d 303, 313, 598 N.Y.S.2d 167, 614 N.E.2d 730 [1993]).

The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];  see also People v. Baque, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2024 N.Y. Slip Op. 05244 [2024]).  There is no basis for disturbing the jury's determinations concerning credibility and identification, even in light of the cooperation agreement for one of the witnesses (see People v. Gaccione, 204 A.D.3d 503, 504, 164 N.Y.S.3d 457 [1st Dept. 2022], lv denied 38 N.Y.3d 1188, 176 N.Y.S.3d 214, 197 N.E.3d 494 [2022]).  The testimony of the cooperating witness was corroborated by one of the victims, who recognized both defendant and the cooperating witness shortly before being shot while running from them.  This was sufficient to connect “defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth” (People v. Reome, 15 N.Y.3d 188, 191–192, 906 N.Y.S.2d 788, 933 N.E.2d 186 [2010]). It was also consistent with the testimony of another witness who stated that he saw two men run away from the victims after the shooting.

We do not find the sentence to be excessive.