| People v Hampton |
| 2014 NY Slip Op 00051 [113 AD3d 1131] |
| January 3, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Terence Hampton, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered January 5, 2012. The judgment convicted defendant, upon a jury verdict,of robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice by reducing the sentence to a determinateterm of imprisonment of 15 years and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of robbery in the first degree (Penal Law § 160.15 [4]). He was sentenced,as a second felony offender, to a determinate term of incarceration of 24 years to befollowed by a five-year period of postrelease supervision. We reject defendant'scontention that Supreme Court erred in failing to rule on his pretrial request forsubstitution of counsel. "Although the court should have expressly denied defendant'smotion on the record, we conclude that the record is sufficient to establish conclusivelythat the motion was implicitly denied" (People v Watkins, 77 AD3d 1403, 1404 [2010], lvdenied 15 NY3d 956 [2010]). Moreover, we conclude that the court adequately"inquir[ed] into the nature of the disagreement [and] its potential for resolution"(People v Hobart, 286 AD2d 916, 916 [2001], lv denied 97 NY2d 683[2001] [internal quotation marks omitted]). That disagreement primarily arose fromdefense counsel's refusal to make a motion to dismiss the indictment pursuant to CPL30.30, which in fact was frivolous. The court in any event allowed defendant to make theCPL 30.30 motion on a pro se basis, and denied the motion. The court properly declinedto inquire into the remaining grounds for defendant's request for substitution of counselbecause his assertions "failed to suggest a serious possibility of good cause forsubstitution" (Watkins, 77 AD3d at 1404 [internal quotation marks omitted])."[I]nasmuch as defendant did not subsequently express dissatisfaction with defensecounsel or renew his request for new counsel," we conclude that defendant thereafterabandoned any further request for substitution of counsel (People v Bennett, 94 AD3d1570, 1571 [2012], lv denied 19 NY3d 994 [2012], reconsiderationdenied 19 NY3d 1101 [2012]).
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's further contention that the verdict[*2]is against the weight of the evidence with respect tothe issue of identification (see generally People v Bleakley, 69 NY2d 490, 495[1987]). "The jury's resolution of credibility and identification issues is entitled to greatweight . . . , and it cannot be said that the jury failed to give the evidencethe weight it should be accorded" (People v Mobley, 49 AD3d 1343, 1345 [2008], lvdenied 11 NY3d 791 [2008] [internal quotation marks omitted]). Finally, we agreewith defendant that the sentence is unduly harsh and severe, particularly inasmuch asdefendant had no prior history of violent crime and is relatively young. We thereforemodify the judgment as a matter of discretion in the interest of justice by reducing thesentence imposed to a determinate term of imprisonment of 15 years, to be followed bythe five-year period of postrelease supervision previously imposed.Present—Centra, J.P., Peradotto, Carni, Lindley and Valentino, JJ.