People v. Thomas

276 A.D.2d 570, 714 N.Y.S.2d 449, 2000 N.Y. App. Div. LEXIS 10128

Opinion

Appeal by the People from an order of the Supreme Court, Queens County (Browne, J.), dated June 25, 1999, which granted the defendant’s motion pursuant to CPL 440.10 to vacate a judgment of the Supreme Court, Queens County (Clabby, J.), rendered October 31, 1996, convicting him of sodomy in the first degree and sexual abuse in the first degree, on the ground that he was denied the effective assistance of counsel.

Ordered that the order is reversed, on the law and on the facts, the motion is denied, and the judgment of conviction is reinstated.

The hearing court erred in vacating the judgment of conviction because the defendant failed to carry his burden of showing ineffective assistance of counsel. While the defendant demonstrated that no tactical reason existed for the failure to conduct the suggested cross-examination of the victim, the error was not the sort of single error by a trial counsel, otherwise competent, that was so substantial as to seriously compromise the defendant’s right to a fair trial.

Accordingly, the motion is denied, and the judgment of conviction is reinstated. Santucci, J. P., Sullivan, McGinity and Luciano, JJ., concur.