PEOPLE v. CABO

Ordered that the judgment is affirmed.

We reject the defendant's contention that he was denied the effective assistance of counsel. Although his trial counsel failed to make a motion to suppress the physical evidence, it is settled that "a failure to move to suppress physical evidence does not, in and of itself, establish the ineffective assistance of counsel" ( People v. Taylor, 157 A.D.2d 617, 618; see also, People v. De Mauro, 48 N.Y.2d 892; People v. Allen, 193 A.D.2d 609, lv denied 82 N.Y.2d 890). Here, the record indicates that there was no colorable basis for a suppression motion ( see, People v Garcia, 75 N.Y.2d 973; People v. Allen, supra, at 610; People v Sullivan, 153 A.D.2d 223, 231). Because the defendant failed to make a showing that defense counsel had no legitimate explanation for failing to make the suppression motion, it should "be presumed that counsel acted in a competent manner and exercised professional judgment in not pursuing" such a motion ( People v Rivera, 71 N.Y.2d 705, 709; People v. Allen, supra). Bracken, J.P., Thompson, Krausman and Florio, JJ., concur.