People v. Cabo

228 A.D.2d 689, 646 N.Y.2d 11, 646 N.Y.S.2d 11, 1996 N.Y. App. Div. LEXIS 7376

Opinion

We reject the defendant’s contention that he was denied the effective assistance of counsel. Although his trial counsel failed to make a motion to suppress the physical evidence, it is settled that "a failure to move to suppress physical evidence does not, in and of itself, establish the ineffective assistance of counsel” (People v Taylor, 157 AD2d 617, 618; see also, People v De Mauro, 48 NY2d 892; People v Allen, 193 AD2d 609, lv denied 82 NY2d 890). Here, the record indicates that there was no colorable basis for a suppression motion (see, People v Garcia, 75 NY2d 973; People v Allen, supra, at 610; People v Sullivan, 153 AD2d 223, 231). Because 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 Rivera, 71 NY2d 705, 709; People v Allen, supra). Bracken, J. P., Thompson, Krausman and Florio, JJ., concur.