People v Gillespie

[*1] People v Gillespie 2005 NY Slip Op 51299(U) Decided on August 16, 2005 Supreme Court, Kings County McKay, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 16, 2005
Supreme Court, Kings County

PEOPLE OF THE STATE OF NEW YORK

against

David Gillespie, DEFENDANT.



3909/04

JOSEPH KEVIN McKAY, J.

Defendant, David Gillespie, was convicted of burglary in the second degree ( Penal Law 140.25-2 ) before this Court, with a jury, on February 17, 2005. Having obtained new counsel post verdict, defendant

now moves to set aside the jury's verdict pursuant to CPL 330.30 (1).

For reasons stated below his motion is summarily DENIED.

The motion is premised primarily on the claim of ineffective assistance of trial counsel, which in turn is rooted almost exclusively in the assertion that trial counsel failed to vigorously cross-examine the People's fingerprint expert or call a defense fingerprint expert to counter or disparage the prosecution's expert. The defense has failed to demonstrate in what way the People's expert could and should have been cross-examined and

impeached, or how a defense expert could have legitimately questioned or disagreed with the analysis or conclusion of the prosecution's fingerprint expert. See, People v. Jurgensen, 288 AD2d 937 [ 4th Dept 2001], lv denied 97 NY2d 684 (2001); People v. Castricone, 224 AD2d 1019 [ 4th Dept.

1996][FN1] , after remand 239 AD2d 929 [ 1997 ], lv denied 90 NY2d 1010 [*2](1997); People v Foust, 192 AD2d 718 [ 2d Dept 1993], lv denied 82 NY2d 717 (1993); error coram nobis denied, 242 AD2d 582 [ 1997 ].

The record fails to show that defendant received less than meaningful representation at trial. See, People v Caban NY2d , 2005 WL 1397044, 2005 NY Slip Op 04988 ( June 14, 2005); People v Benevento, 91 NY2d 708 ( 1998); People v Baldi, 54 NY2d 137 [ 1981 ]; see also, Strickland v Washington, 466 US 668 ( 1984 ); People v Henry, 95 NY2d 563 ( 2000); compare Henry v Poole, 409 F3d 48 (2d Cir. 2005).

To the extent the defense seeks to expand the record through an evidentiary hearing to explore the trial strategy of defense counsel regarding the fingerprint expert, that is properly done, if at all, in a CPL 440.10 proceeding, should the defense be so advised to pursue it. CPL 330.30 (1), by its terms, limits judicial inquiry to matters of record. See, People v Wolf, 98 NY2d 105, 119 ( 2002 ); 98 NY2d 105, 119 (2002); People v Jackson, 19 AD3d 614 [ 2d Dept 2005 ]; People v Wells, 265 AD2d 588 [ 2d Dept. 1999 ], lv denied 94 NY2d 886 ( 2000); People v Armstrong, 237 AD2d 452 [2d Dept 1997 ]; People v Nieves, 144 AD2d 588, [ 2d Dept 1988 ], lv denied 73 NY2d 924 ( 1989); compare People v Satterfield, 66 NY2d 796 (1985).

In my view, neither the ineffective assistance claim presently made nor any asserted errors in the prosecutor's summation undermine the Court's confidence in the jury's verdict nor would these claims require an appellate court to reverse or modify this judgment as a matter of law. See, People v McGrath, AD3d , 2005 WL 1750407, 2005 NY Slip Op 06125 [ 2d Dept July 25, 2005 ]; People v Joseph, AD3d , 797 NYS2d 310, 2005 NY Slip Op 05805 [ 2d Dept July 5, 2005 ]; People v Rhodes , 11 AD3d 487 [ 2d Dept 2004], lv denied 4 NY3d 747 ( 2004 ).

Accordingly, for the reasons discussed herein, defendant's motion to set aside the verdict pursuant to CPL 330.30 (1) is summarily [*3]DENIED.

IT IS SO ORDERED.

E N T E R,

JOSEPH KEVIN McKAY

Footnotes

Footnote 1: While defendant relies on Castricone as authority for the Court to grant a hearing on ineffective assistance of trial counsel, the decision contains other language more instructive for the Gillespie case which would limit the scope of such a hearing, as follows: "Defense counsel need not, however, justify his refusal to obtain an expert witness. Defendant has not demonstrated that such testimony was available, that it would have assisted the jury in its determination or that he was prejudiced by its absence. " People v. Castricone, 224 AD2d at 1020.