| People v Lopez |
| 2008 NY Slip Op 02865 [49 AD3d 899] |
| March 25, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ernesto Lopez, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'HaraGillespie, and Michael J. Balch of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.),rendered March 30, 2004, convicting him of robbery in the second degree and endangering thewelfare of a child, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The trial court conducted a sufficient inquiry regarding the basis of the defendant's requestfor new counsel. No further investigation was required because his conclusory assertions did notsuggest a serious possibility of irreconcilable conflict with defense counsel (see People vStevenson, 36 AD3d 634 [2007]; People v Moore, 228 AD2d 622 [1996]). Contraryto the defendant's assertions, the prosecutor disclosed all relevant documents pursuant toPeople v Rosario (9 NY2d 286 [1961], cert denied 368 US 866 [1961]) andBrady v Maryland (373 US 83 [1963]), and defense counsel was in possession of them attrial.
The defendant was not deprived of his statutory right to a speedy trial. The court properlyexcluded from the time chargeable to the People the period in which the court was reviewing thegrand jury minutes (see CPL 30.30 [4] [a]). Furthermore, the defendant failed todemonstrate that the remarks by the prosecutor had "a decided tendency to prejudice the jury"(People v Halm, 81 NY2d [*2]819, 821 [1993] [internalquotation marks omitted]; see People v Ashwal, 39 NY2d 105, 110 [1976]). Hercomments, viewed in the context of the entire trial, fell within the latitude afforded to attorneysin advocating their cause (see People v Halm, 81 NY2d 819, 821 [1993]; People vAshwal, 39 NY2d 105, 110 [1976]).
The defendant's challenge to the procedure pursuant to which he was sentenced as apersistent violent felony offender is unpreserved for appellate review (see People vBouyea, 64 NY2d 1140, 1142 [1985]; People v Sampson, 30 AD3d 623 [2006];People v Guzman, 23 AD3d 579, 580 [2005]). In any event, the challenge is withoutmerit. The statutory purposes for the preliminary examination (see CPL 400.15 [3]) weresatisfied (cf. People v Bouyea, 64 NY2d 1140, 1142 [1985]; People v Sampson,30 AD3d 623, 623-624 [2006]). The defendant was aware that the sentencing court wasconsidering his four previous felonies and knew that he was being sentenced as a persistentviolent felony offender (see People v Sampson, 30 AD3d 623, 624 [2006]). When givenan opportunity to speak at the sentencing hearing, the defendant asked the court to not considerhis prior convictions with regard to his present sentence. Thus, remitting the matter to thesentencing court for resentencing "would be futile and pointless" (People v Bouyea, 64NY2d 1140, 1142 [1985]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Mastro, J.P., Dickerson, Belen and Chambers, JJ., concur.