Opinion
May 27, 1988
Appeal from the Orleans County Court, Miles, J.
Present — Dillon, P.J., Doerr, Green, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment entered upon a jury verdict convicting him of burglary in the second degree and conspiracy in the fifth degree.
Defendant contends that he was denied effective assistance of counsel due to his attorney's failure to request a Huntley hearing to suppress his inculpatory statements to the police. We disagree. The failure by counsel to request a hearing, without more, does not constitute a basis for finding ineffectiveness. (People v Brown, 122 A.D.2d 546, lv denied 68 N.Y.2d 810; People v Eddy, 95 A.D.2d 956, 957.) Further, whether defendant was deprived of effective assistance of counsel because his inculpatory statements would have been suppressed if a hearing had been held cannot be ascertained on this record. To support this contention, defendant's proper remedy is to bring a CPL article 440 motion to develop the record on this issue (see, People v Burton, 120 A.D.2d 967).