| People v Hernandez |
| 2009 NY Slip Op 03591 [62 AD3d 401] |
| May 5, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Rhondelesia Hernandez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Mark Dwyer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Maxwell Wiley, J., at request for newcounsel; Edwin Torres, J., at jury trial and sentence), rendered September 11, 2007, convictingdefendant of robbery in the first and second degrees, and sentencing her, as a persistent violentfelony offender, to an aggregate term of 20 years to life, unanimously affirmed.
Since defendant withdrew her request for a new attorney, she waived her present claim thatthe court should have assigned new counsel. There is no support in the record for her argumentthat the attorney influenced her to withdraw her motion. In any event, as an alternative holding,we conclude that there is no basis for reversal. Defendant concedes that her boilerplate motiondid not establish good cause for a substitution, but argues that "an irreconcilable conflict haddeveloped as soon as counsel called his client a liar." However, the conduct of counselcharacterized as "calling his client a liar" consisted of the attorney's permissible defense of hisown performance (see People vNelson, 7 NY3d 883 [2006]), in which he described defendant's allegations as"inaccurate," "incorrect," and "misleading." Counsel appropriately brought these inaccuracies tothe court's attention (see People v DePallo, 96 NY2d 437, 441-442 [2001]). Moreover,counsel did not accuse his client of perjury or falsehood, impugn her credibility before a trier offact (compare People v Berroa, 99 NY2d 134 [2002]; People v Darrett, 2 AD3d 16 [2003]), or demonstrate any inabilityto continue providing effective assistance.
Defendant's challenge to the constitutionality of her adjudication as a persistent violentfelony offender is not preserved for our review (People v Rosen, 96 NY2d 329 [2001],cert denied 534 US 899 [2001]), and we decline to review it in the interest of justice. Asan alternative holding, [*2]we conclude that it is without merit(see Almendarez-Torres v United States, 523 US 224 [1998]; People v Leon, 10 NY3d 122, 126[2008], cert denied 554 US—, 128 S Ct 2976 [2008]). Concur—Gonzalez,P.J., Buckley, Catterson, McGuire and Renwick, JJ.