PEOPLE v. ASCENCIO (2026)

Judgment, Supreme Court, New York County (Michele S. Rodney, J.), rendered December 14, 2018, as amended March 19, 2019, convicting defendant, after a jury trial, of burglary in the second degree, attempted burglary in the second degree, and stalking in the third degree, and sentencing her to an aggregate term of four years;  and order, same court and Justice, entered on or about October 24, 2024, which denied her CPL 440.10 motion to vacate the judgment, unanimously affirmed.

The court properly denied defendant's CPL 440.10 motion without conducting a hearing, as “the motion could be determined on the trial record and defendant's submissions on the motion” (People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834 [1985];  see also CPL 440.30[4][a] ).  Upon the combined record, the motion court correctly rejected defendant's Sixth Amendment claim under McCoy v. Louisiana (584 U.S. 414, 138 S.Ct. 1500, 200 L.Ed.2d 821 [2018] ) and her claim of ineffective assistance of counsel (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] ).

Contrary to defendant's contentions, her trial lawyer did not concede her guilt of harassment in the first degree and burglary in the second degree (see People v. Quiles, 217 A.D.3d 635, 635, 193 N.Y.S.3d 7 [1st Dept 2023], lv denied 40 N.Y.3d 1094, 204 N.Y.S.3d 782, 228 N.E.3d 595 [2024] ).  In the face of overwhelming evidence that defendant committed the acts at issue, including sending numerous strange and sexualized voicemails, emails, and text messages to the victim and showing up uninvited at her apartment door, defense counsel presented a consistent, reasonable defense to the third-degree stalking charges by arguing that defendant's conduct was not “likely to cause [the victim] to reasonably fear physical injury” (Penal Law § 120.50[3] );  and to the second-degree burglary charges by challenging the element of “intent to commit a crime” inside the building (Penal Law § 140.25;  see People v. Green, 187 A.D.2d 259, 259, 589 N.Y.S.2d 867 [1st Dept 1992], lv denied 81 N.Y.2d 762, 594 N.Y.S.2d 724, 610 N.E.2d 397 [1992] ).  Throughout the trial, counsel vigorously challenged the evidence that the victim had an objectively reasonable fear of physical injury and thus did not concede defendant's guilt of first-degree harassment (see Penal Law § 240.25).  In context, counsel's use of the terms “harassing” and “harassment” during his summation amounted to colloquial speech, as he urged the jury to conclude that defendant's acts were non-criminal, annoying, and bothersome conduct that distressed but did not physically threaten the victim (see People v. Boyton, 189 A.D.2d 721, 722, 593 N.Y.S.2d 183 [1st Dept 1993] ).  At the end of his summation, counsel expressly asked the jury to acquit defendant of the burglary and stalking charges.  Accordingly, “because counsel maintained defendant's innocence, there was no McCoy violation” (Quiles, 217 A.D.3d at 635, 193 N.Y.S.3d 7).

Counsel was also not ineffective for failing to object to the supplemental jury charge (see People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004] ).  The jury asked whether “harassment alone is a crime.”  In response, the court correctly informed the jury that harassment in the first degree was a crime and provided the jury with the statutory definition, while twice emphasizing that “defendant is not charged with that crime” (see Penal Law §§ 10.00[6], 240.25).  To the extent the record permits review of defendant's claim that counsel was required to ask the court to also provide the jury with the definition of harassment in the second degree, counsel may have reasonably determined that this ran the risk of confusing the jury and diverting their attention from relevant issues (see People v. Smith–Merced, 50 A.D.3d 259, 259, 854 N.Y.S.2d 386 [1st Dept 2008], lv denied 10 N.Y.3d 939, 862 N.Y.S.2d 346, 892 N.E.2d 412 [2008] ), as the intent to commit a violation is not an “intent to commit a crime” sufficient to support a burglary charge (Penal Law § 140.25;  see Penal Law § 10.00[6];  see also People v. Fermin, 231 A.D.2d 436, 436–437, 647 N.Y.S.2d 202 [1st Dept 1996] ).