Calendar Date: March 26, 2018Before: McCarthy, J.P., Devine, Mulvey, Aarons and Pritzker, JJ.__________Halscott Megaro, PA, Orlando, Florida (Patrick MichaelMegaro of counsel), for appellant.John M. Muehl, District Attorney, Cooperstown (Michael F.Getman of counsel), for respondent.__________Aarons, J.Appeal, by permission, from an order of the County Court ofOtsego County (Burns, J.), entered November 22, 2016, whichdenied defendant’s motion pursuant to CPL 440.10 to vacate thejudgment convicting him of the crime of criminal sexual act inthe third degree (six counts), without a hearing.In November 2013, defendant was convicted, following a jurytrial, of six counts of criminal sexual act in the third degree.Defendant was sentenced to an aggregate prison term of 18 years,to be followed by 10 years of postrelease supervision.Defendant’s appeal from the judgment of conviction was thereafteraffirmed by this Court (129 AD3d 1339 [2015], lv denied 26 NY3d969 [2015]). In September 2016, defendant moved under CPL 440.10(1) to vacate the judgment of conviction on the basis of newlydiscovered evidence — namely, a forensic report — concluding thatthe audio recording admitted at trial of defendant’sinterrogation was not authentic, and because of alleged deficientrepresentation. County Court denied the motion without ahearing. With this Court’s permission, defendant now appeals.We find no merit in defendant’s argument that the forensicreport challenging the authenticity of the recorded interrogationconstituted newly discovered evidence. Defendant failed todemonstrate that such report could not have been obtained withdue diligence prior to trial (see People v Mack, 301 AD2d 863,864-865 [2003], lv denied 100 NY2d 540 [2003]; People v Wong, 256AD2d 724, 726 [1998], lv denied 93 NY2d 903 [1999]).Additionally, as County Court found, the forensic report ismerely impeachment evidence to attack the trial testimony of theinvestigator who testified as to the authenticity of therecording (see People v Tucker, 40 AD3d 1213, 1215 [2007], lvdenied 9 NY3d 882 [2007]). Furthermore, even if we agreed withdefendant that the report constituted newly discovered evidence,there was no reasonable probability that it would have changedthe outcome (see People v Terry, 44 AD3d 1157, 1159 [2007], lvdenied 10 NY3d 772 [2008]; People v Tucker, 40 AD3d at 1215;People v Civitello, 152 AD2d 812, 814-815 [1989], lv denied 74NY2d 947 [1989]).Defendant also argues that he received ineffectiveassistance because his trial counsel failed to investigatewhether the audio recording of his interrogation was authenticand failed to object to its admission into evidence. Inparticular, defendant asserts that the People’s case hinged uponthis evidence. Contrary to this assertion, however, the Peopleintroduced testimony from the victim about defendant’sinappropriate acts, which was further corroborated by otherwitnesses. Almost all of these witnesses were thoroughly crossexaminedand, as defendant recognizes, he did not fully admit tothe alleged wrongdoing during his interrogation.In view of the foregoing, we cannot say that the failure toinvestigate the authenticity of the audio recording or to objectto its admission constituted ineffective assistance (see People vZayas-Torres, 143 AD3d 1176, 1177-1178 [2016], lv denied 30 NY3d984 [2017]; People v Miller, 45 AD3d 1190, 1190-1191 [2007];People v Williams, 306 AD2d 763, 765 [2003], lv denied 100 NY2d625 [2003]). Moreover, given that defendant’s trial counsel gaveopening and closing statements, made pretrial motions, vigorouslycross-examined the People’s witnesses and offered proof ondefendant’s behalf, the trial record and written submissions failto disclose that defendant was deprived of meaningfulrepresentation (see People v Blackman, 90 AD3d 1304, 1311-1312[2011], lv denied 19 NY3d 971 [2012]; People v Avery, 80 AD3d982, 987 [2011], lv denied 17 NY3d 791 [2011]). Accordingly,County Court properly denied defendant’s motion without a hearing(see People v Satterfield, 66 NY2d 796, 799-800 [1985]; People vBethune, 80 AD3d 1075, 1076 [2011], lv denied 17 NY3d 792 [2011];People v Brown, 23 AD3d 702, 703 [2005], lv denied 6 NY3d 774[2006]; People v Demetsenare, 14 AD3d 792, 795 [2005]).McCarthy, J.P., Devine, Mulvey and Pritzker, JJ., concur.ORDERED that the order is affirmed.ENTER:Robert D. MaybergerClerk of the Court
