Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on April 15, 2026

2019-01848, (Ind. No. 162/17)

Betsy Barros, J.P.

Helen Voutsinas

Donna-Marie E. Golia

Phillip Hom, JJ.

[*1]

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Terence P. Murphy, J.), rendered January 23, 2019, convicting him of robbery in the first degree, robbery in the second degree (two counts), criminal obstruction of breathing, criminal mischief in the fourth degree, and petit larceny, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions (William C. Donnino, J.), of the suppression of physical evidence and the defendant's statements to law enforcement officials.

ORDERED that the judgment is affirmed.

The defendant was indicted on various robbery charges arising from alleged robberies that occurred at two gas stations. The defendant was arrested at the scene of the second alleged robbery on April 9, 2016. Following a suppression hearing, where the defendant did not testify, the Supreme Court denied suppression of certain physical evidence and certain statements that the defendant made to law enforcement officials.

After a jury trial, the defendant was convicted of robbery in the first degree, two counts of robbery in the second degree, criminal obstruction of breathing, criminal mischief in the fourth degree, and petit larceny. The defendant appeals.

The defendant sought to testify at the suppression hearing over his own counsel's objection. After the Supreme Court, upon inquiry, found that the defendant's testimony would not be relevant to the suppression issues, it determined that the defendant should not be allowed to testify. Under the circumstances, that determination was not an improvident exercise of discretion, nor is there evidence in this record that the defendant was deprived of the effective assistance of counsel.

A defendant has no absolute right to testify at a suppression hearing (see e.g. United States v Flores-Martinez, 677 F3d 699, 709 [5th Cir]; United States v Pierce, 959 F2d 1297, 1304, n 13 [5th Cir]; Grady v Com., 325 SW3d 333 [Ky]). Whether a defendant should be allowed to testify at a suppression hearing is a decision that should be left to defense counsel because it is a strategic litigation decision requiring expertise (see People v Adams, 186 AD3d 842, 843; People [*2]v Hines, 172 AD3d 1225, 1226). Where a defendant seeks to testify at a suppression hearing, over the objection of his or her own counsel, particularly where, as here, there was no showing that the defendant's testimony would have been relevant to the suppression issues, the defendant may be denied the opportunity to testify at the suppression hearing in the reasoned exercise of the trial court's discretion (see People v Peterson, 6 AD3d 363).

While counsel has the ability to make strategic choices, a defendant may raise concerns of ineffective assistance of counsel. "To prevail on a claim of ineffective assistance under the federal constitution, a defendant 'must show that counsel's representation fell below an objective standard of reasonableness' and 'that the deficient performance prejudiced the defense'" (People v Facey, 180 AD3d 927, 928 [citation omitted], quoting Strickland v Washington, 466 US 668, 687-688). "Under the New York Constitution, a defendant must show that he or she was not afforded 'meaningful representation,' which also entails a two-pronged test" (People v Bernard, 195 AD3d 740, 742 [citation omitted], quoting People v Baldi, 54 NY2d 137, 147; see NY Const, art I, § 6). The first prong of this test is identical to its federal counterpart (see People v Galan, 116 AD3d 787, 789). "The second prong focuses on prejudice to the defendant, regarding the 'fairness of the process as a whole rather than its particular impact on the outcome of the case'" (People v Saunders, 193 AD3d 766, 768, quoting People v Caban, 5 NY3d 143, 156). Here, each of the defendant's assigned counsel met with the defendant multiple times and both attorneys as well as the Supreme Court concluded that there was nothing that the defendant could testify to that was relevant to the scope of the suppression hearing. Moreover, the defendant did not demonstrate a lack of strategy or legitimate explanation, and therefore "'it will be presumed that counsel acted in a competent manner and exercised professional judgment'" (People v Jeffriesel, 209 AD3d 1034, 1036, quoting People v Rivera, 71 NY2d 705, 709).

The sentence imposed was not excessive (see People v Vega, 165 AD3d 984, 984; People v Suitte, 90 AD2d 80).

BARROS, J.P., VOUTSINAS, GOLIA and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court