Opinion
2014-10-22
The PEOPLE, etc., respondent, v. Immanuel FLOWERS, appellant.
Seymour W. James, Jr., New York, N.Y. (Lawrence T. Hausman of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J. Twersky of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Lawrence T. Hausman of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J. Twersky of counsel), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Kings County (Marrus, J.), imposed October 3, 2012, upon his conviction of criminal possession of a weapon in the second degree, upon a jury verdict, after remittitur from this Court for resentencing (People v. Flowers, 97 A.D.3d 693, 947 N.Y.S.2d 886), the resentence being an indeterminate term of imprisonment of 20 years to life as a persistent violent felony offender.
ORDERED that the resentence is affirmed.
The defendant's contention that the resentence imposed was improperly based on counts which were dismissed at trial for lack of legally sufficient evidence is unpreserved for appellate review ( seeCPL 470.05[2]; see also People v. Harris, 101 A.D.3d 900, 900, 954 N.Y.S.2d 920; People v. Stanley, 50 A.D.3d 1066, 1067–1068, 856 N.Y.S.2d 221; People v. Rambali, 27 A.D.3d 582, 582, 813 N.Y.S.2d 103), and, in any event, is without merit ( see People v. Harris, 101 A.D.3d at 900, 954 N.Y.S.2d 920; People v. Stanley, 50 A.D.3d at 1067–1068, 856 N.Y.S.2d 221). Furthermore, defense counsel's failure to register an objection to this claimed error at resentencing did not constitute ineffective assistance of counsel, as defense counsel could not have been ineffective for failing to advance an argument that had no chance of success ( see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213; People v. DiPippo, 117 A.D.3d 1076, 1077, 986 N.Y.S.2d 243).
The resentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675). DICKERSON, J.P., LEVENTHAL, SGROI and LaSALLE, JJ., concur.