THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. CHRISTOPHER WESTER ALSO KNOWN AS MURDER DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. CHRISTOPHER L. WESTER, ALSO KNOWN AS C-MURDER, DEFENDANT-APPELLANT.

KA 08-00122

Decided: March 25, 2011

PRESENT:  CENTRA, J.P., FAHEY, CARNI, GREEN, AND GORSKI, JJ. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT-APPELLANT. MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

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 plea of guilty of kidnapping in the second degree (Penal Law § 135.20) and assault in the second degree (§ 120.05[2] ).   We reject defendant's contention that his attorney became a witness against him and that he was thereby denied effective assistance of counsel.   Contrary to defendant's contention, the statements of defense counsel in response to defendant's pro se motion to withdraw his guilty plea were not adverse to defendant (see People v. Guerra-Pena, 46 AD3d 1469, lv denied 10 NY3d 765).   In any event, even if defendant is correct that the statements were adverse to him, the record conclusively establishes that Supreme Court's “rejection of [the] motion was not influenced by” those statements (People v. Nawabi, 265 A.D.2d 156, lv denied 94 N.Y.2d 865).   We also reject defendant's contention that he was denied effective assistance of counsel based on defense counsel's failure to make any arguments on defendant's behalf at sentencing.   There is no showing that any arguments by defense counsel would have impacted the court's sentencing decision and, thus, “the failure of [defense] counsel to speak on defendant's behalf at sentencing d[id] not constitute ineffective assistance of counsel” (People v. Adams, 247 A.D.2d 819, 819, lv denied 91 N.Y.2d 1004, 1008).

Patricia L. Morgan

Clerk of the Court