| People v Harris |
| 2012 NY Slip Op 05454 [97 AD3d 1111] |
| July 6, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RodneyHarris, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered July 6,2010. The judgment convicted defendant, upon a nonjury verdict, of burglary in the seconddegree and robbery in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a nonjury trialof burglary in the second degree (Penal Law § 140.25 [1] [d]) and robbery in the seconddegree (§ 160.10 [2] [b]). Viewing the evidence in light of the elements of the crimes inthis nonjury trial (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Defendant further contends that County Court erred in considering, and in ultimately convictinghim of, robbery in the second degree (§ 160.10 [2] [b]) as a lesser included offense ofrobbery in the first degree (§ 160.15 [2]), and burglary in the second degree (§140.25 [1] [d]) as a lesser included offense of burglary in the first degree (§ 140.30[1]). Pursuant to CPL 300.50 (1), "[a]ny error respecting such [consideration by thecourt] . . . is waived by the defendant unless he [or she] objects thereto" in a timelymanner, and defendant failed to do so here (see People v Ford, 62 NY2d 275, 282-283[1984]; People v Smith, 13 AD3d1121, 1122-1123 [2004], lv denied 4 NY3d 803 [2005]).
Defendant failed to preserve for our review his contention that the robbery count of theindictment is facially duplicitous (seePeople v Becoats, 71 AD3d 1578, 1579 [2010], affd 17 NY3d 643 [2011],cert denied 566 US — [2012]), and we decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Wereject defendant's further contention that he was denied effective assistance of counsel basedupon defense counsel's failure to move to dismiss the robbery count of the indictment. "Adefendant is not denied effective assistance of trial counsel merely because counsel does notmake a motion or argument that has little or no chance of success" (People v Stultz, 2 NY3d 277, 287[2004], rearg denied 3 NY3d 702 [2004]). In addition, we reject defendant's contentionthat he was denied effective assistance of counsel based on defense counsel's failure to object tothe court's consideration of lesser included offenses or to request that the court consider otherlesser included offenses (see generallyPeople v Turner, 5 NY3d 476, 483-485 [2005]; People v Calderon, 66 [*2]AD3d 314, 320 [2009], lv denied 13 NY3d 858 [2009]).Unlike the failure to raise a statute of limitations defense, defense counsel's failure to object to, orto request, the court's consideration of lesser included offenses is not the type of "clear-cut andcompletely dispositive" error that rises to the level of ineffective assistance of counsel(Turner, 5 NY3d at 481).
Defendant failed to preserve for our review his contention that his trial should have beensevered from that of his codefendants (see People v Cruz, 272 AD2d 922, 923 [2000],affd 96 NY2d 857 [2001]; People v Crutchfield, 134 AD2d 508, 509 [1987], lvdenied 71 NY2d 894 [1988]). In any event, that contention lacks merit. There was noevidence that the "core of each defense [was] in irreconcilable conflict with the other"(People v Mahboubian, 74 NY2d 174, 184 [1989]; see Cruz, 272 AD2d at 923).There is thus no merit to defendant's further contention that he received ineffective assistance ofcounsel based on defense counsel's failure to move to sever his trial from that of his codefendants(see People v Williams, 281 AD2d 933, 934 [2001], lv denied 96 NY2d 869[2001]).
Inasmuch as defendant withdrew his motion for a Huntley hearing concerning thestatement that he made to the police, defendant waived his present contention that the courtshould have conducted a Huntley hearing to determine the admissibility of that statement(see generally People v Jones, 79AD3d 1665, 1665 [2010]). Further, defendant has not shown that such a motion, if notwithdrawn, would have been successful, and we conclude that he was not denied effectiveassistance of counsel on that ground (seegenerally People v Pace, 70 AD3d 1364, 1366 [2010], lv denied 14 NY3d 891[2010]; People v Borcyk, 60 AD3d1489 [2009], lv denied 12 NY3d 923 [2009]). Present—Centra, J.P., Fahey,Peradotto, Carni and Sconiers, JJ.