People v. Jones , 153 A.D.3d 727 ( 2017 )

People v Jones (2017 NY Slip Op 06191)

People v Jones

2017 NY Slip Op 06191

Decided on August 16, 2017

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 August 16, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
SHERI S. ROMAN
SANDRA L. SGROI
COLLEEN D. DUFFY, JJ.

2015-09390
(Ind. No. 1743/89)

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

v

Michael Jones, appellant.

Peluso & Touger, LLP, New York, NY (David Touger of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Joyce Slevin, and Kristen A. Carroll of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Brennan, J.), dated September 10, 2015, which denied, after a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court (Juviler, J.) rendered April 13, 1990, convicting him of manslaughter in the second degree (two counts) and assault in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the order is affirmed.

The Supreme Court did not err in finding, on the totality of the record, that the defendant was not deprived of his right to the effective assistance of counsel (see Strickland v Washington, 466 U.S. 668, 688; People v Baldi, 54 NY2d 137, 147; People v Casey, 149 AD3d 771). Counsel made a strategic decision to forgo an alibi defense, and to mount a defense based on an attack on the credibility of the People's case, which relied heavily on the testimony of an accomplice who had agreed to testify against the defendant in exchange for a lesser sentence.

Additionally, the Supreme Court correctly denied the defendant's motion to vacate the judgment of conviction on the ground that the defendant is actually innocent. The defendant failed to meet his burden of establishing by clear and convincing evidence that he is actually innocent (see generally People v Hamilton, 115 AD3d 12, 27).

BALKIN, J.P., ROMAN, SGROI and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court