PEOPLE v. HERNANDEZ (2008)

Judgment, Supreme Court, New York County (Budd G. Goodman, J.), rendered February 10, 2005, convicting defendant, after a jury trial, of two counts of burglary in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life, unanimously affirmed.

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];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).   Defendant asserts that his counsel rendered ineffective assistance by failing to make specific challenges to the sufficiency of the evidence.   While failing to make a “winning argument” can constitute ineffective assistance (People v. Turner, 5 N.Y.3d 476, 481, 806 N.Y.S.2d 154, 840 N.E.2d 123 [2005] ), none of the arguments in question fall into that category.   The evidence supported the conclusion that defendant had no privilege or license to enter either of the apartments at issue (see e.g. People v. Quinones, 173 A.D.2d 395, 570 N.Y.S.2d 26 [1991], lv. denied 78 N.Y.2d 972, 574 N.Y.S.2d 952, 580 N.E.2d 424 [1991] ), and also supported the conclusion that he left his fingerprints in those apartments in the course of burglarizing them (see e.g. People v. Texeira, 32 A.D.3d 756, 821 N.Y.S.2d 183 [2006], lv. denied 7 N.Y.3d 904, 826 N.Y.S.2d 613, 860 N.E.2d 75 [2006] ), and we find that arguments to the contrary would have been unavailing.