PEOPLE v. GILPATRICK (2009)

 Defendant appeals from a judgment convicting him upon a jury verdict of driving while intoxicated as a felony (Vehicle and Traffic Law § 1192[3];  § 1193[1][c] [former (i) ] ), aggravated unlicensed operation of a motor vehicle in the first degree (§ 511 [3][a][i] ), and failure to stay within a single lane (§ 1128[a] ).   Viewing the evidence in light of the elements of the crimes 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), we reject defendant's contention that the verdict with respect to driving while intoxicated and aggravated unlicensed operation of a motor vehicle 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).   We further reject the contention of defendant that he was denied the right to effective assistance of counsel.   The “failure to make a motion or [an objection] that has little or no chance of success ․ is not ineffective” (People v. Dashnaw, 37 A.D.3d 860, 863, 828 N.Y.S.2d 697, lv. denied 8 N.Y.3d 945, 836 N.Y.S.2d 555, 868 N.E.2d 238 [internal quotation marks omitted] ), and defendant has failed to show the absence of strategic or other legitimate explanations for defense counsel's alleged shortcomings (see generally People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584).   Viewing defense counsel's representation as a whole and as of the time of the representation, we conclude that defendant received effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Contrary to the remaining contention of defendant in his main brief, the sentence is not unduly harsh or severe.

 We reject the contentions raised by defendant in his pro se supplemental brief.   A defendant who is represented by counsel does not have an absolute right to make a pro se motion, and here County Court did not abuse its discretion in refusing to consider defendant's pro se motion (see People v. Lockett, 1 A.D.3d 932, 933, 767 N.Y.S.2d 750, lv. denied 1 N.Y.3d 630, 777 N.Y.S.2d 29, 808 N.E.2d 1288;  see generally People v. Rodriguez, 95 N.Y.2d 497, 501, 719 N.Y.S.2d 208, 741 N.E.2d 882).   Defendant failed to preserve for our review his contention that the court erred in failing to give a missing witness charge (see People v. Dell, 11 A.D.3d 631, 632, 784 N.Y.S.2d 114, lv. denied 4 N.Y.3d 762, 792 N.Y.S.2d 6, 825 N.E.2d 138) and, in any event, that contention lacks merit inasmuch as there is no indication in the record that defendant was entitled to such a charge (see generally People v. Kitching, 78 N.Y.2d 532, 536-537, 577 N.Y.S.2d 231, 583 N.E.2d 944;  People v. Gonzalez, 68 N.Y.2d 424, 427-428, 509 N.Y.S.2d 796, 502 N.E.2d 583).   Contrary to the further contention of defendant, the People were under no obligation to provide him with evidence concerning which he had prior knowledge (see generally People v. LaValle, 3 N.Y.3d 88, 110, 783 N.Y.S.2d 485, 817 N.E.2d 341;  People v. Doshi, 93 N.Y.2d 499, 506-507, 693 N.Y.S.2d 87, 715 N.E.2d 113).   We have reviewed the remaining contentions of defendant in his pro se supplemental brief and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: