People v. Villone

138 A.D.2d 971

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 1988
• Docket: Appeal No. 2
• Status: Published

Opinion

Order unanimously affirmed. Memorandum: Supreme Court properly denied defendant’s motion made pursuant to CPL 440.10 to set aside the conviction on the grounds of newly discovered evidence and ineffective assistance of counsel.

On his posttrial motion, defendant attempted to relitigate an issue that was raised by trial counsel, namely, that one Blasetti, and not he, had committed the robberies. Blasetti’s confession to the robberies was introduced in evidence at the trial, not only through the testimony of a police officer, but also through the testimony of a lay witness. For the most part, defendant’s purported newly discovered evidence is either cumulative or duplicative of the evidence produced at the trial.

We find no merit to defendant’s contention that he was denied effective assistance of trial counsel. Trial counsel forcefully presented the defense that the crime was committed by Blasetti and introduced Blasetti’s confession from two sources. His decision not to use an alibi defense, which the District Attorney was prepared to rebut, was a matter of trial strategy and cannot be characterized as ineffective assistance of counsel. (Appeal from order of Supreme Court, Monroe County, Bergin, J.—CPL art 440.) Present—Denman, J. P., Boomer, Pine, Lawton and Davis, JJ.