PEOPLE v. RIVERS (2009)

Defendant appeals from a judgment convicting him following a nonjury trial of, inter alia, burglary in the second degree (Penal Law § 140.25[2] ) and resisting arrest (§ 205.30).   We reject defendant's contention that the People impermissibly changed their theory of the case at trial (cf. People v. Roberts, 72 N.Y.2d 489, 497, 534 N.Y.S.2d 647, 531 N.E.2d 279;  People v. Orso, 270 A.D.2d 947, 706 N.Y.S.2d 805, lv. denied 95 N.Y.2d 856, 714 N.Y.S.2d 7, 736 N.E.2d 868).   Further, we conclude that the evidence is legally sufficient to support the conviction of burglary and resisting arrest (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and that, viewing the evidence in this nonjury trial in light of the elements of those crimes (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), the verdict with respect to them is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 We reject the further contention of defendant that he was denied effective assistance of counsel based on the failure of defense counsel to advise Supreme Court (John J. Brunetti, A.J.) that it had not ruled on defendant's CPL 30.30 motion after the filing of a superseding indictment.   Inasmuch as defendant's allegations in support of the motion “did not on their face indicate a clear entitlement to a dismissal of the charges under CPL 30.30” (People v. Lomax, 50 N.Y.2d 351, 357, 428 N.Y.S.2d 937, 406 N.E.2d 793;  see CPL 210.45[5] ), the court did not err in summarily denying the motion.   Thus, although “ ‘[i]t is well settled that a failure of [defense] counsel to assert a meritorious statutory speedy trial claim is, by itself, a sufficiently egregious error to render a defendant's representation ineffective’ ” (People v. Manning, 52 A.D.3d 1295, 1295, 861 N.Y.S.2d 873), here defense counsel was not ineffective in failing to pursue a motion that had no chance of success (see generally People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;  People v. Jackson, 64 A.D.3d 1248, 1250, 883 N.Y.S.2d 684, lv. denied 13 N.Y.3d 745, 886 N.Y.S.2d 99, 914 N.E.2d 1017).

 Contrary to defendant's contention, the court properly refused to preclude the oral admissions that were the subject of the CPL 710.30 notice served by the People after the superseding indictment was filed.   Those admissions were not referenced in the CPL 710.30 notice that was served in connection with the original indictment, but the record establishes that the People filed the superseding indictment out of necessity after the court dismissed two counts of the original indictment.   We thus reject defendant's contention that the People attempted to circumvent the requirements of CPL 710.30 by filing the superseding indictment (cf. People v. Capolongo, 85 N.Y.2d 151, 165, 623 N.Y.S.2d 778, 647 N.E.2d 1286;  see generally People v. Jackson, 245 A.D.2d 964, 667 N.Y.S.2d 133, lv. denied 91 N.Y.2d 926, 670 N.Y.S.2d 408, 693 N.E.2d 755;  People v. Littlejohn, 184 A.D.2d 790, 585 N.Y.S.2d 495, lv. denied 81 N.Y.2d 842, 595 N.Y.S.2d 741, 611 N.E.2d 780).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: