Opinion
6 KA 18–00320
01-31-2020
The PEOPLE of the State of New York, Respondent, v. Richard WHITE, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (EDWARD P. DUNN OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (EDWARD P. DUNN OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER 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 second degree (Penal Law
§ 160.10 [1] ). Defendant failed to preserve his contention that the evidence is legally insufficient to establish that he was "aided by another person actually present" because his motion for a trial order of dismissal was not specifically directed at that alleged insufficiency (id. ; see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; People v. Goodrum, 72 A.D.3d 1639, 1639, 901 N.Y.S.2d 770 [4th Dept. 2010], lv denied 15 N.Y.3d 773, 907 N.Y.S.2d 462, 933 N.E.2d 1055 [2010] ). Furthermore, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Contrary to defendant's further contention, defense counsel was not ineffective for failing to make a specific motion for a trial order of dismissal on the ground that there is legally insufficient evidence that he was aided by another. It is well settled that "[a] defendant is not denied effective assistance of trial counsel merely because counsel does not make a motion or argument that has little or no chance of success" ( People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004] ; see People v. Bakerx, 114 A.D.3d 1244, 1245, 980 N.Y.S.2d 210 [4th Dept. 2014], lv denied 22 N.Y.3d 1196, 986 N.Y.S.2d 417, 9 N.E.3d 912 [2014] ), and here "there was no chance that such a motion would have succeeded" ( People v. Heary, 104 A.D.3d 1208, 1209, 960 N.Y.S.2d 812 [4th Dept. 2013], lv denied 21 N.Y.3d 943, 968 N.Y.S.2d 6, 990 N.E.2d 140 [2013], reconsideration denied 21 N.Y.3d 1016, 971 N.Y.S.2d 498, 994 N.E.2d 394 [2013] ; see Bakerx, 114 A.D.3d at 1245, 980 N.Y.S.2d 210 ). The evidence at trial established that defendant " ‘committed the robbery in the full view of his companion, who ... was in a position to render immediate assistance to defendant’ " ( People v. McIntosh, 158 A.D.3d 1289, 1290, 71 N.Y.S.3d 778 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ; cf. People v. Hedgeman, 70 N.Y.2d 533, 535, 523 N.Y.S.2d 46, 517 N.E.2d 858 [1987] ). With respect to defendant's remaining allegations of ineffective assistance of counsel, we conclude that defendant "failed to sustain his burden to establish that his attorney ‘failed to provide meaningful representation’ that compromised his ‘right to a fair trial’ " ( People v. Pavone, 26 N.Y.3d 629, 647, 26 N.Y.S.3d 728, 47 N.E.3d 56 [2015], quoting People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; see People v. Huddleston, 160 A.D.3d 1359, 1361, 76 N.Y.S.3d 294 [4th Dept. 2018], lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 430, 108 N.E.3d 504 [2018] ). Finally, the sentence is not unduly harsh or severe.