People v. Vasquez

2021 NY Slip Op 04724, 197 A.D.3d 667, 149 N.Y.S.3d 913

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 18, 2021
• Docket: Ind. No. 3293/10
• Status: Published

Opinion

People v Vasquez (2021 NY Slip Op 04724)

People v Vasquez

2021 NY Slip Op 04724

Decided on August 18, 2021

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 18, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
LEONARD B. AUSTIN, J.P.
VALERIE BRATHWAITE NELSON
ANGELA G. IANNACCI
LINDA CHRISTOPHER, JJ.

2011-11756 ON MOTION
(Ind. No. 3293/10)

[*1]The People of the State of New York, respondent,

v

Abraham Angel Vasquez, also known as Juan Velazquez, appellant.

DECISION & ORDER

Motion by the appellant for leave to reargue an application for a writ of error coram nobis, which was determined by decision and order of this Court dated December 30, 2020.

Upon the papers filed in support of the motion and the papers filed in opposition and in relation thereto, it is

ORDERED that the motion for leave to reargue is granted, and, upon reargument, the decision and order of this Court dated December 30, 2020, is recalled and vacated, and the following decision and order is substituted therefor:

Janet E. Sabel, New York, NY (David Crow and Friedman Kaplan Seiler & Adelman LLP [Eric Corngold and Anil K. Vassanji], of counsel), for appellant, and appellant pro se.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Amy Appelbaum of counsel), for respondent. Patricia Pazner, New York, NY (A. Alexander Donn of counsel), former appellate counsel.

Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated January 17, 2018 (People v Vasquez, 157 AD3d 832), affirming a judgment of the Supreme Court, Kings County (Neil Jon Firetog, J.), rendered December 1, 2011. By decision and order on motion of this Court dated December 11, 2018, the appellant was granted leave to serve and file a brief on the issue of whether there was error in connection with the handling of two jury notes under People v O'Rama (78 NY2d 270), and the application was held in abeyance in the interim. The parties have now filed their respective briefs. Justice Christopher has been substituted for former Justice Balkin (see 22 NYCRR 1250.1[b]).

ORDERED that the application is denied.

The defendant argues that he was deprived of the effective assistance of appellate counsel because his counsel failed to argue on appeal that the trial court's handling of jury notes [*2]violated People v O'Rama (78 NY2d 270).

The constitutional requirement that a defendant be provided with the effective assistance of appellate counsel is met where appellate counsel provides "meaningful representation" (People v Borrell, 12 NY3d 365, 368; see People v Stultz, 2 NY3d 277). Here, contrary to the defendant's contention, the record does not present a "'clear-cut'" violation of People v O'Rama (78 NY2d 270) in the trial court's handling of jury notes (People v Borrell, 12 NY3d at 369, quoting People v Turner, 5 NY3d 476, 481; see People v Nealon, 26 NY3d 152). Under the circumstances, appellate counsel's failure to assert an O'Rama violation did not deprive the defendant of effective assistance of counsel (see People v Borrell, 12 NY3d at 368-369).

The remaining contention raised in the defendant's pro se supplemental brief is without merit.

Accordingly, the defendant received meaningful representation on appeal.

AUSTIN, J.P., BRATHWAITE NELSON, IANNACCI and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court