People v Burgos

People v Burgos 2021 NY Slip Op 03604 Decided on June 9, 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 June 9, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
HECTOR D. LASALLE, P.J.
MARK C. DILLON
ANGELA G. IANNACCI
LINDA CHRISTOPHER, JJ.
2018-09015
(Ind. No. 52/17)

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

v

Andrew Burgos, appellant.

Janet E. Sabel, New York, NY (Jose David Rodriguez Gonzalez of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Thomas B. Litsky of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (William E. Garnett, J.), rendered October 27, 2017, convicting him of attempted burglary in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

The Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress the in-court identification of the defendant by the complainant. Contrary to the defendant's contention, the People met their burden of establishing by clear and convincing evidence that the complainant's observations of the defendant during the incident provided an independent basis for her in-court identification of the defendant (see People v Gray, 135 AD3d 874, 874; People v Small, 110 AD3d 1106, 1106-1107).

The Supreme Court properly denied the defendant's motion to withdraw his plea of guilty without assigning new counsel. Contrary to the defendant's contention, defense counsel did not take a position adverse to that of the defendant with respect to the motion (see People v Lopez-Perez, 128 AD3d 1093; People v Caple, 279 AD2d 635, 636).

LASALLE, P.J., DILLON, IANNACCI and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court