

People v Ayala (2020 NY Slip Op 00529)





People v Ayala


2020 NY Slip Op 00529


Decided on January 28, 2020


Appellate Division, First 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 January 28, 2020

Kapnick, J.P., Oing, Singh, Moulton, JJ.


10880 826/18

[*1] The People of the State of New York, Respondent,
vDaniel Ayala, Defendant-Appellant.


Robert S. Dean, Center for Appellate Litigation, New York (Anjali Pathmanathan of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Ryan J. Foley of counsel), for respondent.

Judgment, Supreme Court, Bronx County (George R. Villegas, J.), rendered September 19, 2018, as amended September 24, 2018, convicting defendant, upon his plea of guilty, of criminal tampering in the first degree, and sentencing him to a term of nine months, unanimously affirmed.
Defendant's claim that his counsel rendered ineffective assistance by failing to make certain motions addressed to the indictment is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by, the record (see People v Rivera , 71 NY2d 705, 709 [1988]; People v Love , 57 NY2d 998 [1982]), with particular reference to the strategic considerations involved in counsel's obtaining from the court a favorable disposition of the charges without making the motions at issue. Furthermore, aside from the issue of the reasonableness of counsel's conduct, the existing record does not establish the prejudice prong of either a state or federal ineffectiveness claim, because there is no indication that the ultimate disposition would have been more favorable had counsel made the pretrial motions at issue. Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento , 91 NY2d 708, 713-714 [1998]; People v Ford , 86 NY2d 397, 404 [1995]; Strickland v Washington , 466 US 668 [1984]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2020
CLERK


