People v Chenevert

2008 NY Slip Op 05206

Decided on June 6, 2008

Appellate Division, Fourth Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 6, 2008


PRESENT: SMITH, J.P., CENTRA, FAHEY, PERADOTTO, AND PINE, JJ.
811 KA 05-02372




Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered May 25, 2005. The judgment convicted defendant, upon a nonjury verdict, of criminal possession of a weapon in the third degree, criminal possession of a controlled substance in the seventh degree and unlawful possession of marihuana.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR RESPONDENT.


It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a nonjury trial of, inter alia, criminal possession of a weapon in the third degree (Penal Law § 265.02 [former (4)]). Defendant contends that he was denied effective assistance of counsel because, inter alia, his attorney had a business relationship with co-defendant's attorney, and County Court failed to conduct a sufficient Gomberg inquiry after learning of that relationship. We reject that contention. "Defendant informed the court that he wanted defense counsel to continue to represent him, and it thus cannot be said that defendant was denied effective assistance of counsel" (People v Floyd, 45 AD3d 1457, 1459-1460, lv denied 10 NY3d 810, 811, 818; see People v Kopp, 33 AD3d 153, 158-159, lv denied 7 NY3d 849, cert denied ___ US ___, 127 S Ct 1296; People v Murphy, 224 AD2d 1023, lv denied 87 NY2d 1022; see generally People v McDonald, 68 NY2d 1, 8-9, rearg dismissed 69 NY2d 724). We have reviewed defendant's contention with respect to the remaining alleged instances of ineffective assistance of counsel and conclude that it is without merit (see generally People v Baldi, 54 NY2d 137, 147). Contrary to defendant's further contention, "the verdict, based on the applicability of the automobile presumption . . ., is not against the weight of the evidence" (People v Wilburn, ___ AD3d ___, ___ [Apr. 25, 2008]; see People v Lesane, 284 AD2d 249, 250; People v Delvas, 181 AD2d 740; see generally People v Bleakley, 69 NY2d 490, 495). Finally, we note that the certificate of conviction incorrectly reflects that defendant was convicted following a jury trial, and it must therefore be amended to reflect that he was convicted following a nonjury trial (see generally People v Saxton, 32 AD3d 1286).
Entered: June 6, 2008
JoAnn M. Wahl
Clerk of the Court