PEOPLE v. DeLEON (2006)

Appeal by the defendant from a judgment of the County Court, Westchester County (West, J.), rendered June 5, 2002, convicting him of robbery in the first degree, criminal use of a firearm in the first degree, grand larceny in the fourth degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that he was denied the effective assistance of counsel is without merit.   The record indicates that there was no colorable basis to suppress either the complainant's identification of the defendant (see People v. Edmonson, 75 N.Y.2d 672, 677, 555 N.Y.S.2d 666, 554 N.E.2d 1254, cert. denied 498 U.S. 1001, 111 S.Ct. 563, 112 L.Ed.2d 570;  People v. Nieves, 26 A.D.3d 519, 520, 809 N.Y.S.2d 586;  Matter of Kassan D., 282 A.D.2d 747, 747-748, 724 N.Y.S.2d 334) or the defendant's statement made in response to a routine booking question (see People v. Rodney, 85 N.Y.2d 289, 293, 624 N.Y.S.2d 95, 648 N.E.2d 471;  People v. Acevedo, 258 A.D.2d 140, 143, 695 N.Y.S.2d 572;  People v. Langston, 243 A.D.2d 728, 728, 663 N.Y.S.2d 629).   As the defendant failed to make a showing that defense counsel had no legitimate explanation for failing to make the suppression motion, it should “be presumed that counsel acted in a competent manner and exercised professional judgment in not pursuing” such a motion (People v. Montana, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;  see People v. Cabo, 228 A.D.2d 689, 689, 646 N.Y.S.2d 11;  People v. Allen, 193 A.D.2d 609, 609-610, 597 N.Y.S.2d 169).   Likewise, the defendant failed to show that defense counsel's ultimate decision not to put into writing his oral motion pursuant to CPL 270.10 was not “legitimately based on the justifiable belief that there [was] no ‘colorable’ basis to do so” (People v. DeFreitas, 213 A.D.2d 96, 101, 630 N.Y.S.2d 755, quoting People v. Garcia, 75 N.Y.2d 973, 974, 556 N.Y.S.2d 505, 555 N.E.2d 902;  see Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579;  People v. Faulk, 251 A.D.2d 345, 673 N.Y.S.2d 715;  People v. Branch, 244 A.D.2d 562, 665 N.Y.S.2d 674;  People v. Hobson, 227 A.D.2d 643, 644, 643 N.Y.S.2d 610).   Defense counsel's failure to object to the prosecutor's remarks during summation was not unreasonable, as the subject remarks were made “in response to the defense counsel's comments on credibility and the conflicts between the testimony of the prosecution's witnesses and the defendant's testimony” (People v. Phillips, 285 A.D.2d 477, 478, 727 N.Y.S.2d 637;  see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;  People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. Adamo, 309 A.D.2d 808, 809, 765 N.Y.S.2d 651), and “the issue of credibility was central to the trial” (People v. Banks, 258 A.D.2d 525, 526, 685 N.Y.S.2d 262;  see People v. Crawford, 130 A.D.2d 678, 515 N.Y.S.2d 604).

Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5];  People v. Moody, 300 A.D.2d 510, 510, 751 N.Y.S.2d 542;  People v. Younger, 299 A.D.2d 431, 431, 749 N.Y.S.2d 100;  People v. Borum, 293 A.D.2d 483, 484, 739 N.Y.S.2d 634;  People v. Corona, 232 A.D.2d 652, 652, 648 N.Y.S.2d 1010).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675).