Opinion
No. KA 07-01939.
July 9, 2010.
Appeal from a judgment of the Monroe County Court (Frank R Geraci, Jr., J.), rendered April 18, 2007. The judgment convicted defendant, upon a jury verdict, of assault in the first degree and criminal possession of a weapon in the third degree.
DAVISON LAW OFFICE, PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR RESPONDENT.
Present: Scudder, P.J., Peradotto, Carni, Lindley and Sconiers, JJ.
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, of assault in the first degree (Penal Law § 120.10) and criminal possession of a weapon in the third degree (§ 265.02 [former (4)]). Defendant failed to preserve for our review his contention that the count of the indictment charging him with criminal possession of a weapon was duplicitous ( see People v Sponburgh, 61 AD3d 1415, lv denied 12 NY3d 929), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). Viewing the evidence in light of the elements of assault in the first degree as charged to the jury ( see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict with respect to that count is not against the weight of the evidence ( see generally People v Bleakley, 69 NY2d 490, 495).
We reject the further contention of defendant that he was denied effective assistance of counsel ( see generally People v Baldi, 54 NY2d 137, 147). Although defendant contends that he was denied effective assistance of counsel because defense counsel did not seek youthful offender status for him, it is well established that "[t]he failure to make motions with little or no chance of success does not constitute ineffective assistance of counsel" ( People v Nuffer, 70 AD3d 1299, 1300). Here, there were no "mitigating circumstances . . . bear[ing] directly upon the manner in which the crime[s were] committed," nor could defendant be considered a "relatively minor" participant in the crimes (CPL 720.10). Finally, the sentence is not unduly harsh or severe.