People v. Lobban

• Citation: 77 A.D.3d 768,909 N.Y.S.2d 488
• Parties: The PEOPLE, etc., respondent, v. Lorenzo LOBBAN, appellant.
• Decision Date: 12 October 2010
• Court: New York Supreme Court Appellate Division

909 N.Y.S.2d 488
77 A.D.3d 768

The PEOPLE, etc., respondent,
v.
Lorenzo LOBBAN, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 12, 2010.

909 N.Y.S.2d 489

Marianne Karas, Armonk, N.Y., for appellant and appellant pro se.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Andrea M. DiGregorio and Cristin N. Connell of counsel), for respondent.

REINALDO E. RIVERA, J.P., PETER B. SKELOS, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.

77 A.D.3d 769

Appeal by the defendant, by permission, from an order of the County Court, Nassau County (Calabrese, J.), dated June 9, 2008, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of conviction of the same court rendered April 17, 2007, convicting him of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree (two counts), reckless endangerment in the first degree, and menacing in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the order is affirmed.

Contrary to the defendant's contention, defense counsel's failure to move to suppress his post-arrest statements based upon a purported violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639, did not constitute ineffective assistance of counsel, as the subject statements were exculpatory and consistent with the theory of defense ( see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213; People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Washington, 71 A.D.3d 1064, 896 N.Y.S.2d 874).

Furthermore, the defendant was not deprived of the effective assistance of counsel because his attorney formerly represented one of the People's witnesses in an unrelated criminal matter. In order to prevail on such a conflict-based claim of ineffective assistance of counsel, the defendant must show that "the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation" ( People v. Konstantinides, 14 N.Y.3d 1, 10, 896 N.Y.S.2d 284, 923 N.E.2d 567 [internal quotation marks omitted]; see People v. Smart, 96 N.Y.2d 793, 795, 726 N.Y.S.2d 343, 750 N.E.2d 45; People v. Longtin, 92 N.Y.2d 640, 644, 684 N.Y.S.2d 463, 707 N.E.2d 418, cert. denied 526 U.S. 1114, 119 S.Ct. 1760, 143 L.Ed.2d 791;

909 N.Y.S.2d 490

People v. Ortiz, 76 N.Y.2d 652, 657, 563 N.Y.S.2d 20, 564 N.E.2d 630). Contrary to the...