People v. Cuesta

• Decision Date: 18 November 1991
• Citation: 576 N.Y.S.2d 342,177 A.D.2d 639
• Parties: The PEOPLE, etc., Respondent, v. Louis CUESTA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 342

576 N.Y.S.2d 342

177 A.D.2d 639

The PEOPLE, etc., Respondent, v. Louis CUESTA, Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 18, 1991.

Schwed & Zucker, Kew Gardens (David Zucker, of counsel), for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (Annette Cohen, of counsel, Michelle L. Weinberg, on the brief), for respondent.

Before KUNZEMAN, J.P., and SULLIVAN, BALLETTA, and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hanophy, J.), rendered July 12, 1989, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The instant case arises out of a so-called "buy and bust" operation that was conducted on the afternoon of December 14, 1988, in the vicinity of 90th Street and Roosevelt Avenue in Queens. At the trial, the undercover officer testified that when Enrique Osario approached him, he asked Osario if anyone had cocaine and Osario replied that the price was $15. The undercover gave $15 in prerecorded money to Osario, who, in turn, brought it to the defendant. Osario and the defendant walked over to a third individual, Oscar Cardona, and the three then entered a nearby laundromat. When the three men came out of the laundromat, Cardona gave Osario a plastic bag containing cocaine, and Osario brought it over to the undercover officer. After the three men had walked back into the laundromat, the backup team arrested them.

The defendant and Cardona were tried jointly. At the close of the People's case, the defendant presented a witness who testified that she was present in the laundromat because she was to meet the defendant there, that the defendant was alone inside the laundromat and that she did not see Cardona at any time. Thereafter, Cardona took the stand and, pursuant to questions from his own attorney, essentially confessed to the crime and implicated the defendant as a participant in the sale.

The defendant contends that the court should have severed his trial from that of Cardona based upon inconsistent defenses. However, the record is devoid of any request by the defendant that his case be severed from that of Cardona and the defendant did not move for a mistrial. Thus, this issue is unpreserved for appellate review (see, CPL 470.05[2]; People v. Russell, 71 N.Y.2d 1016, 530 N.Y.S.2d 101 525 N.E.2d 747; People v. Walker, 71 N.Y.2d 1018, 530 N.Y.S.2d 103, 525 N.E.2d 748; see also, People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9). In any event, the defendant failed to meet the second prong of the two-prong test established in People v. Mahboubian, 74 N.Y.2d 174, at 184, 544 N.Y.S.2d 769, 543 N.E.2d 34, i.e., that there was a "significant danger" that a conflict between the defenses offered by the defendant and the codefendant would lead the jury to infer the defendant's guilt (see also, People v. Cardwell, 78 N.Y.2d 996, 575 N.Y.S.2d 267, 580 N.E.2d 753). Any prejudice to the defendant was mitigated because the codefendant Cardona took the stand, thereby preserving the defendant's right to confrontation and to cross-examine him (see, People v. Anthony, 24 N.Y.2d 696, 301 N.Y.S.2d 961, 249 N.E.2d 747; People v. Stuckey, 147 A.D.2d 724, 538 N.Y.S.2d 328; People v. Smith, 144 A.D.2d 397, 533 N.Y.S.2d 920; People v. Larkin, 135 A.D.2d 834, 523 N.Y.S.2d 131).

The defendant also contends that he was denied the effective assistance of counsel. However, in order to prevail on a claim of ineffective assistance of counsel, the defendant must overcome the strong presumption that defense counsel rendered effective assistance (see, Strickland v. Washington, 466 U.S. 668, 689-690, 104 S.Ct. 2052, 2065-2066, 80 L.Ed.2d 674; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400). Moreover, the defendant must also show that, but for counsel's allegedly deficient performance, the outcome of the criminal proceeding would have been different (see, Hill v. Lockhart, 474 U.S. 52, 57-59, 106 S.Ct. 366, 369-370, 88 L.Ed.2d 203; People v. Benn, 68 N.Y.2d 941, 510 N.Y.S.2d 81...