People v Young

2010 NY Slip Op 05197 [74 AD3d 1864]

June 11, 2010

Appellate Division, Fourth Department

As corrected through Wednesday, August 25, 2010

The People of the State of New York, Respondent, v MalcolmYoung, Appellant.

—[*1]The Legal Aid Bureau of Buffalo, Inc., Buffalo (Michael C. Walsh of counsel), fordefendant-appellant. Frank A. Sedita, III, District Attorney, Buffalo (J. Michael Marion ofcounsel), for respondent.

Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), renderedJanuary 5, 2009. The judgment convicted defendant, upon a nonjury verdict, of criminalpossession of a controlled substance in the fourth degree, attempted burglary in the third degree,criminal mischief in the fourth degree, resisting arrest and obstructing governmentaladministration in the second degree.

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

Memorandum: On appeal from a judgment convicting him after a nonjury trial of, inter alia,criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1]) and attempted burglary in the third degree (§§ 110.00, 140.20), defendantcontends that he was denied effective assistance of counsel based on defense counsel's failure tomove for a trial order of dismissal. "We reject that contention, inasmuch as such [a]. . . motion would have had no chance of success" (People v Brown, 67 AD3d 1369,1370 [2009]; see People v Webb,60 AD3d 1291, 1292 [2009], lv denied 12 NY3d 930 [2009]), and "[t]here can be nodenial of effective assistance of trial counsel arising from counsel's failure to 'make a motion orargument' that has little or no chance of success" (People v Caban, 5 NY3d 143, 152 [2005]). Contrary to defendant'sfurther contention, the sentence is not unduly harsh or severe.

Finally, we note that the certificate of conviction misspells defendant's name, and incorrectlyrecites that defendant was convicted of a class B felony under the second count of the indictmentand was sentenced to an indeterminate term of imprisonment with a minimum of 1½ yearsunder the third count of the indictment. The certificate of conviction therefore must be amendedto include the proper spelling of defendant's name, and to recite that defendant was convicted ofa class C felony under the second count of the indictment and was sentenced to an indeterminateterm of imprisonment with a minimum of 11/3 years under the third count of theindictment (see generally People vSaxton, 32 AD3d 1286 [2006]). Present—Smith, J.P., Lindley, Sconiers, Pine andGorski, JJ.