PEOPLE v. DAMPHIER (2008)

Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered April 4, 2005, upon a verdict convicting defendant of the crimes of robbery in the second degree (two counts), burglary in the second degree, petit larceny and menacing in the second degree.

Defendant was charged in a five-count indictment with, among other things, robbery in the second degree based upon a November 2003 incident in which he and another individual allegedly pushed their way into the victim's house and pointed a gun at him.   The two men told the victim to “[g]et down on [his] face,” and pushed him back onto his couch.   The victim, who had been home alone, then told the men that a woman was in another room and, when the men went to find her, the victim ran to a neighbor's house and called the police. When the victim returned to his house, he discovered that several hundred dollars had been taken from his wallet.   The victim subsequently informed the police that he believed one of the robbers was the son of his acquaintance Paul H. Damphier, who is, in fact, defendant's father.   In addition, the victim subsequently found a black “cap,” which was part of a black, nylon stocking, on his porch.   The cap was later shown to have defendant's DNA on it.

Following a jury trial, defendant was convicted of the crimes of robbery in the second degree (two counts), burglary in the second degree, petit larceny and menacing in the second degree.   He was thereafter sentenced, as a second felony offender, to an aggregate prison term of 13 years, with five years of postrelease supervision.   Defendant appeals and we now affirm.

 Initially, we reject defendant's argument that reversal and a new trial are required because he was denied his right to a prompt preliminary hearing (see CPL 180.10[2] ), despite his repeated requests that the hearing be held and that he be permitted to appear pro se.   The record evinces that the preliminary hearing was adjourned by Town Court at defense counsel's request pending a preindictment conference and negotiation of a plea agreement, which defendant rejected.   An indictment was returned prior to the felony hearing, thereby obviating the need for a hearing and rendering defendant's right thereto moot (see People v. Frazier, 202 A.D.2d 985, 985, 609 N.Y.S.2d 722 [1994], lv. denied 83 N.Y.2d 910, 614 N.Y.S.2d 392, 637 N.E.2d 283 [1994];  People v. Brown, 184 A.D.2d 856, 857, 585 N.Y.S.2d 106 [1992], lv. denied 80 N.Y.2d 927, 589 N.Y.S.2d 855, 603 N.E.2d 960 [1992];  People v. Phillips, 88 A.D.2d 672, 672, 450 N.Y.S.2d 925 [1982];  see also People ex rel. Hirschberg v. Close, 1 N.Y.2d 258, 261, 152 N.Y.S.2d 1, 134 N.E.2d 818 [1956];  Matter of Angell v. Ferris, 227 A.D.2d 475, 476, 643 N.Y.S.2d 124 [1996], lv. denied 88 N.Y.2d 816, 651 N.Y.S.2d 406, 674 N.E.2d 336 [1996];  Preiser, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 11A, CPL 180.10, at 162).

 Moreover, given the existence of strategic reasons for adjourning the preliminary hearing-i.e., to permit the negotiation of a plea deal that was concededly very favorable-there is no merit to defendant's claim that he received ineffective assistance of counsel due to counsel's multiple requests for adjournment of the hearing prior to the People's decision to present the charge to a grand jury (see People v. Benevento, 91 N.Y.2d 708, 712-713, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  People v. Baldi, 54 N.Y.2d 137, 146-147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981];  cf. People v. Miller, 11 A.D.3d 729, 730, 783 N.Y.S.2d 130 [2004];  People v. Martin, 168 A.D.2d 794, 798, 564 N.Y.S.2d 503 [1990] ).   Finally, “ ‘weigh[ing] the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987], quoting People ex rel. MacCracken v. Miller, 291 N.Y. 55, 62, 50 N.E.2d 542 [1943] ), we conclude that the verdict is not against the weight of the evidence.

ORDERED that the judgment is affirmed.

MERCURE, J.

CARDONA, P.J., SPAIN, LAHTINEN and KAVANAGH, JJ., concur.