Opinion
No. 159 KA 22-01824
05-03-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. KARL O. DIGGS, DEFENDANT-APPELLANT.
THOMAS L. PELYCH, HORNELL, FOR DEFENDANT-APPELLANT. BRITTANY GROME ANTONACCI, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
THOMAS L. PELYCH, HORNELL, FOR DEFENDANT-APPELLANT.
BRITTANY GROME ANTONACCI, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, BANNISTER, GREENWOOD, AND NOWAK, JJ.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered October 6, 2022. The judgment convicted defendant upon a jury verdict of robbery in the first degree and criminal possession of a weapon 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 of robbery in the first degree (Penal Law § 160.15 [3]) and criminal possession of a weapon in the third degree (§ 265.02 [1]).
We reject defendant's contention that he was deprived of effective assistance of counsel by defense counsel's failure to make a timely pretrial motion for a Mapp hearing. The failure to make a particular pretrial motion generally does not, by itself, establish ineffective assistance of counsel (see People v Rivera, 71 N.Y.2d 705, 709 [1988]). Here, there was little or no chance that the motion, even if timely, would have been successful (see generally People v Thornton, 213 A.D.3d 1332, 1333 [4th Dept 2023], lv denied 39 N.Y.3d 1157 [2023]). Moreover, viewing the evidence, the law, and the circumstances of the case together and as of the time of representation, we conclude that defense counsel provided meaningful representation (see People v Satterfield, 66 N.Y.2d 796, 798-800 [1985]; People v Spencer, 209 A.D.2d 1011, 1011 [4th Dept 1994], lv denied 84 N.Y.2d 1039 [1995]).
Contrary to defendant's further contention, his sentence is not unduly harsh or severe.