People v. Figueroa

278 A.D.2d 139, 717 N.Y.S.2d 592, 2000 N.Y. App. Div. LEXIS 14041

Opinion

Judgment, Supreme Court, New York County (George Daniels, J.), rendered October 22, 1998, convicting defendant, upon his plea of guilty, of burglary in the second degree and attempted burglary in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 16 years to life, unanimously affirmed.

Defendant’s ineffective assistance claim rests entirely on his counsel’s strategic decision to abandon his motion to suppress identification testimony in order to avoid forfeiture, pursuant to People v Kirkland (89 NY2d 903), of his argument that such testimony should have been precluded for insufficient CPL 710.30 notice. This issue would require a CPL 440.10 motion in order to afford counsel an opportunity to explain his strategy. To the extent that the existing record permits review, we conclude that defendant received meaningful representation (see, People v Benevento, 91 NY2d 708, 713-714; People v Ford, 86 NY2d 397, 404). Counsel’s strategic choice was plausible, and the record establishes that it is highly unlikely that counsel’s continued participation in the Wade hearing would have resulted in suppression of any identification evidence.

Defendant’s contention concerning his sentence on his attempted burglary conviction is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that defendant was sentenced in accordance with his negotiated plea. Concur — Sullivan, P. J., Wallach, Lerner, Andrias and Buckley, JJ.