| People v Konovalchuk |
| 2017 NY Slip Op 02174 [148 AD3d 1514] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1](March 24, 2017)
| The People of the State of New York, Respondent, v RuslanKonovalchuk, Appellant. |
The Glennon Law Firm, P.C., Rochester (Peter J. Glennon of counsel), fordefendant-appellant.
Ruslan Konovalchuk, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), renderedMay 23, 2012. The judgment convicted defendant, upon a jury verdict, of robbery in the seconddegree (three counts) and robbery in the third degree.
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 ofthree counts of robbery in the second degree (Penal Law § 160.10 [2] [b]) and onecount of robbery in the third degree (§ 160.05). Defendant contends that SupremeCourt, in sentencing him, improperly penalized him for exercising his right to a jury trial. Wereject that contention. " '[T]he mere fact that a sentence imposed after trial is greater thanthat offered in connection with plea negotiations is not proof that defendant was punished forasserting his right to trial' " (People v Chappelle, 14 AD3d 728, 729 [2005], lv denied 5NY3d 786 [2005]; see People vMurphy, 68 AD3d 1730, 1731 [2009], lv denied 14 NY3d 843 [2010]). Indeed," '[g]iven that the quid pro quo of the bargaining process will almost necessarilyinvolve offers to moderate sentences that ordinarily would be greater, it is also to be anticipatedthat sentences handed out after trial may be more severe than those proposed in connection with aplea' " (People v Martinez,26 NY3d 196, 200 [2015]). We conclude that "the record shows no retaliation orvindictiveness against the defendant for electing to proceed to trial" (People v Shaw, 124AD2d 686, 686 [1986], lv denied 69 NY2d 750 [1987]; see People v Brown, 67 AD3d1427, 1427-1428 [2009], lv denied 14 NY3d 839 [2010]). The sentence is not undulyharsh or severe.
We reject the contention of defendant in his pro se supplemental brief that he was deprivedof his right to counsel when the court summarily denied his request for new counsel withoutconducting any inquiry or giving him an opportunity to state the grounds for the motion. Adefendant may be entitled to new assigned counsel "upon showing 'good cause for a substitution,'such as a conflict of interest or other irreconcilable conflict with counsel" (People vSides, 75 NY2d 822, 824 [1990]). In determining whether good cause exists to substitutecounsel, the court should consider "the timing of the defendant's request, its effect on theprogress of the case and whether present counsel will likely provide the defendant withmeaningful assistance" (People vLinares, 2 NY3d 507, 510 [2004]). Where a defendant makes a "seemingly seriousrequest[ ]" for new assigned counsel, the court is obligated to "make some minimal inquiry"(Sides, 75 NY2d at 824-825; seePeople v Porto, 16 NY3d 93, 99-100 [2010]). Here, despite the court's initialinterruption of defendant while he was stating the reasons for his request for new counsel,defendant thereafter made additional statements, and we conclude that the record establishes thatdefendant was able to set forth his contention that he was requesting new counsel because hiscounsel was ineffective. Inasmuch as those stated grounds were wholly without merit, there wasno reason for the court to conduct any further inquiry. Defendant made no "specific factualallegations that would indicate a serious conflict with counsel" (Porto, 16 NY3d at100-101) and, indeed, it appeared that the motion was merely a delaying tactic (see People v Woods, 110 AD3d748, 748 [2013], lv denied 23 NY3d 969 [2014]).
Contrary to defendant's further contention in his pro se supplemental brief, viewing theevidence in light of the elements of the crime of robbery in the second degree (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict with respect to those robbery counts is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Although a different verdict would not have been unreasonable, it cannot be said that thejurors failed to give the evidence the weight it should be accorded (see People v Ettleman, 109 AD3d1126, 1128 [2013], lv denied 22 NY3d 1198 [2014]).
We reject defendant's remaining contention in his pro se supplemental brief that he receivedineffective assistance of counsel. With respect to counsel's failure to object to the court'sstatement to the prospective jurors at the start of jury selection that defendant was in custody, therecord shows that the court immediately followed that statement with an instruction that theprospective jurors were not to hold it against defendant that he was in custody, and theprospective jurors agreed that they would not. In light of that essentially sua sponte curativeinstruction, we conclude that any objection by defense counsel would have been redundant. Withrespect to counsel's failure to move to reopen the probable cause hearing after hearing certaintestimony at trial, we conclude that such a motion would have been without merit because thetrial testimony would not have changed the probable cause determination. It is well settled that"[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to'make a motion or argument that has little or no chance of success' " (People v Caban, 5 NY3d 143, 152[2005], quoting People v Stultz, 2NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]; see People v Simmons, 133 AD3d1275, 1278 [2015], lv denied 27 NY3d 1006 [2016]).
Lastly, defendant contends that counsel was ineffective in failing to seek a ruling from thecourt on that part of defendant's omnibus motion seeking dismissal of the indictment allegingthat the grand jury proceedings were defective on the ground that the prosecutor failed to notifythe grand jury of defendant's request pursuant to CPL 190.50 (6) to call certain witnesses (see generally People v Hill, 5 NY3d772, 773 [2005]; People vRigby, 105 AD3d 1383, 1383-1384 [2013], lv denied 21 NY3d 1019 [2013]).Defendant failed, however, to provide a sufficient record to enable this Court to review hiscontention (see People v Hawkins,113 AD3d 1123, 1125 [2014], lv denied 22 NY3d 1156 [2014]).Present—Centra, J.P., Peradotto, Carni and Lindley, JJ.