PEOPLE v. DIGGS (2024)

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 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, 530 N.Y.S.2d 52, 525 N.E.2d 698 [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, 183 N.Y.S.3d 237 [4th Dept. 2023], lv denied 39 N.Y.3d 1157, 190 N.Y.S.3d 713, 211 N.E.3d 1166 [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, 497 N.Y.S.2d 903, 488 N.E.2d 834 [1985]; People v. Spencer, 209 A.D.2d 1011, 1011, 619 N.Y.S.2d 992 [4th Dept. 1994], lv denied 84 N.Y.2d 1039, 623 N.Y.S.2d 195, 647 N.E.2d 467 [1995]).

Contrary to defendant's further contention, his sentence is not unduly harsh or severe.