PEOPLE v. RIVERA (2007)

 Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the second degree (Penal Law § 140.25 [2] ) and possession of burglar's tools (§ 140.35).   Contrary to the contention of defendant, he was not denied effective assistance of counsel by defense counsel's failure to move to reopen a suppression hearing.   Defendant has failed to establish that “the motion, if made, would have been successful and has failed to establish that counsel failed to provide meaningful representation” (People v. Ayala, 236 A.D.2d 802, 803, 654 N.Y.S.2d 59, lv. denied 90 N.Y.2d 855, 661 N.Y.S.2d 181, 683 N.E.2d 1055;  see People v. Peterson, 19 A.D.3d 1015, 796 N.Y.S.2d 796, lv. denied 6 N.Y.3d 851, 816 N.Y.S.2d 757, 849 N.E.2d 980).   Defendant's further contention that defense counsel was ineffective in failing to make a record of a hearing concerning the admissibility of a voice identification and Supreme Court's ruling following that hearing is based on matters outside the record on appeal and thus is properly the subject of a motion pursuant to CPL article 440 (see generally People v. Washington, 39 A.D.3d 1228, 1230, 834 N.Y.S.2d 407, lv. denied 9 N.Y.3d 870, 840 N.Y.S.2d 899, 872 N.E.2d 1205;  People v. Jackson, 291 A.D.2d 930, 737 N.Y.S.2d 899, lv. denied 98 N.Y.2d 677, 746 N.Y.S.2d 466, 774 N.E.2d 231).   We reject the contention of appellate counsel that he is unable to provide effective assistance of counsel on appeal based on the absence of a record of that alleged hearing.   As noted, defendant may raise that issue by way of a motion pursuant to CPL article 440.

Finally, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: