People v. Vasquez, 20 N.Y.3d 461 (2013)
A defense counsel’s failure to object to the admission of identification testimony not included in a CPL 710.30 notice does not constitute ineffective assistance of counsel unless the error was egregious, prejudicial, and resulted in a likelihood of a different outcome.
Summary
Vasquez was convicted of attempted robbery after a victim identified him to police both before and after his arrest. The prosecution’s CPL 710.30 notice only mentioned the pre-arrest identification. Vasquez argued that his trial counsel was ineffective for failing to object to the testimony regarding the post-arrest identification, claiming a violation of CPL 710.30. The Court of Appeals affirmed the conviction, holding that even if counsel erred, it was not egregious or prejudicial enough to constitute ineffective assistance, especially given the other strong evidence against Vasquez. The court emphasized that a showing of prejudice, while not indispensable under the state constitution, is significant in evaluating such claims.
Facts
The victim was approached by Vasquez, who asked for money and pointed a knife at him. The victim fled into a store and called 911. Officer Herbert responded and the victim pointed out Vasquez as the perpetrator. After arresting Vasquez but before taking him to the station, Herbert asked the victim if he was sure Vasquez was the man, and the victim confirmed. At trial, the victim could not identify Vasquez in court but testified he had pointed out the robber to the police. The victim also testified that the robber threw a knife near a tree. Herbert recovered a knife from that location. Vasquez admitted to asking the victim for change just before the arrest.
Procedural History
Vasquez was convicted of attempted robbery. He appealed, arguing a CPL 710.30 violation and ineffective assistance of counsel. The Appellate Division affirmed, finding the CPL 710.30 issue unpreserved and any error harmless, also holding that defense counsel provided meaningful representation. The New York Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.
Issue(s)
Whether defense counsel’s failure to object to testimony regarding a post-arrest identification, not included in the CPL 710.30 notice, constituted ineffective assistance of counsel.
Holding
No, because even assuming the failure to object was an error, it was not so egregious and prejudicial as to deprive the defendant of a fair trial, considering the other evidence presented against him.
Court’s Reasoning
The Court of Appeals reasoned that even if the CPL 710.30 notice was deficient, and even if a successful motion to preclude the post-arrest identification testimony could have been made, the failure to make such a motion did not constitute ineffective assistance of counsel. The court emphasized that counsel’s performance should not be second-guessed with hindsight. Additionally, the court noted the presence of other substantial evidence against Vasquez, including the victim’s initial identification, the recovery of the knife from the described location, and Vasquez’s admission to asking the victim for money. The court stated, “[A]n argument [for preclusion] could have been made, but not an argument ‘so compelling that a failure to make it amounted to ineffective assistance of counsel’” (People v Carter, 7 N.Y.3d 875, 877 [2006]). While prejudice is not indispensable under the state constitution for an ineffective assistance claim, its absence is significant here, where the alleged error was a single, non-egregious mistake. The court also pointed out that the trial court could have allowed a late notice and suppression hearing under CPL 710.30(2) if “good cause” was shown, which might have mitigated any initial error. The court noted the People’s argument that the point-out and post-arrest conversation were part of the same continuum, lessening the impact of the omission from the CPL 710.30 notice.