PEOPLE v. LOPEZ (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered March 30, 2004, convicting him of robbery in the second degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The trial court conducted a sufficient inquiry regarding the basis of the defendant's request for new counsel.   No further investigation was required because his conclusory assertions did not suggest a serious possibility of irreconcilable conflict with defense counsel (see People v. Stevenson, 36 A.D.3d 634, 831 N.Y.S.2d 74;  People v. Moore, 228 A.D.2d 622, 644 N.Y.S.2d 639).   Contrary to the defendant's assertions, the prosecutor disclosed all relevant documents pursuant to People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and defense counsel was in possession of them at trial.

 The defendant was not deprived of his statutory right to a speedy trial.   The court properly excluded from the time chargeable to the People the period in which the court was reviewing the grand jury minutes (see CPL 30.30[4] [a] ).   Furthermore, the defendant failed to demonstrate that the remarks by the prosecutor had “a decided tendency to prejudice the jury” (People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;  see People v. Ashwal, 39 N.Y.2d 105, 110, 383 N.Y.S.2d 204, 347 N.E.2d 564).   Her comments, viewed in the context of the entire trial, fell within the latitude afforded to attorneys in advocating their cause (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;  People v. Ashwal, 39 N.Y.2d 105, 110, 383 N.Y.S.2d 204, 347 N.E.2d 564).

 The defendant's challenge to the procedure pursuant to which he was sentenced as a persistent violent felony offender is unpreserved for appellate review (see People v. Bouyea, 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338;  People v. Sampson, 30 A.D.3d 623, 818 N.Y.S.2d 144;  People v. Guzman, 23 A.D.3d 579, 580, 804 N.Y.S.2d 410).   In any event, the challenge is without merit.   The statutory purposes for the preliminary examination (see CPL 400.15[3] ) were satisfied (cf. People v. Bouyea, 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338;  People v. Sampson, 30 A.D.3d 623, 623-624, 818 N.Y.S.2d 144).   The defendant was aware that the sentencing court was considering his four previous felonies and knew that he was being sentenced as a persistent violent felony offender (see People v. Sampson, 30 A.D.3d 623, 624, 818 N.Y.S.2d 144).   When given an opportunity to speak at the sentencing hearing, the defendant asked the court to not consider his prior convictions with regard to his present sentence.   Thus, remitting the matter to the sentencing court for resentencing “would be futile and pointless” (People v. Bouyea, 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).