| People v Gilpatrick |
| 2009 NY Slip Op 04600 [63 AD3d 1636] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v TimothyGilpatrick, Appellant. |
—[*1] Timothy Gilpatrick, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), renderedAugust 21, 2007. The judgment convicted defendant, upon a jury verdict, of driving whileintoxicated, a class E felony, aggravated unlicensed operation of a motor vehicle in the firstdegree, and failure to stay within a single lane.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofdriving while intoxicated as a felony (Vehicle and Traffic Law § 1192 [3]; § 1193[1] [c] [former (i)]), aggravated unlicensed operation of a motor vehicle in the first degree(§ 511 [3] [a] [i]), and failure to stay within a single lane (§ 1128 [a]). Viewing theevidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's contention that the verdict with respect to drivingwhile intoxicated and aggravated unlicensed operation of a motor vehicle is against the weight ofthe evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We furtherreject the contention of defendant that he was denied the right to effective assistance of counsel.The "failure to make a motion or [an objection] that has little or no chance of success. . . is not ineffective" (People v Dashnaw, 37 AD3d 860, 863 [2007], lv denied 8NY3d 945 [2007] [internal quotation marks omitted]), and defendant has failed to show theabsence of strategic or other legitimate explanations for defense counsel's alleged shortcomings(see generally People v Benevento, 91 NY2d 708, 712 [1998]). Viewing defensecounsel's representation as a whole and as of the time of the representation, we conclude thatdefendant received effective assistance of counsel (see generally People v Baldi, 54NY2d 137, 147 [1981]). Contrary to the remaining contention of defendant in his main brief, thesentence is not unduly harsh or severe.
We reject the contentions raised by defendant in his pro se supplemental brief. A defendantwho is represented by counsel does not have an absolute right to make a pro se motion, and hereCounty Court did not abuse its discretion in refusing to consider defendant's pro se motion (see People v Lockett, 1 AD3d932, 933 [2003], lv denied 1 NY3d 630 [2004]; see generally People vRodriguez, 95 NY2d 497, 501 [2000]). Defendant failed to preserve for our review hiscontention that [*2]the court erred in failing to give a missingwitness charge (see People v Dell,11 AD3d 631, 632 [2004], lv denied 4 NY3d 762 [2005]) and, in any event, thatcontention lacks merit inasmuch as there is no indication in the record that defendant wasentitled to such a charge (see generally People v Kitching, 78 NY2d 532, 536-537[1991]; People v Gonzalez, 68 NY2d 424, 427-428 [1986]). Contrary to the furthercontention of defendant, the People were under no obligation to provide him with evidenceconcerning which he had prior knowledge (see generally People v LaValle, 3 NY3d 88, 110 [2004];People v Doshi, 93 NY2d 499, 506-507 [1999]). We have reviewed the remainingcontentions of defendant in his pro se supplemental brief and conclude that they are withoutmerit. Present—Scudder, P.J., Martoche, Fahey, Carni and Pine, JJ.