PEOPLE v. HARRIS

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The PEOPLE of the State of New York, Respondent, v. Rodney HARRIS, Defendant–Appellant.

Decided: July 06, 2012

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ. Thomas Theophilos, Buffalo, for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.

Defendant appeals from a judgment convicting him following a nonjury trial of burglary in the second degree (Penal Law § 140.25[1][d] ) and robbery in the second degree (§ 160.10[2][b] ). Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not 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). Defendant further contends that County Court erred in considering, and in ultimately convicting him of, robbery in the second degree (§ 160.10[2][b] ) as a lesser included offense of robbery in the first degree (§ 160.15[2] ), and burglary in the second degree (§ 140.25[1][d] ) as a lesser included offense of burglary in the first degree (§ 140.30[1] ). Pursuant to CPL 300.50(1), “[a]ny error respecting such [consideration by the court] ․ is waived by the defendant unless he [or she] objects thereto” in a timely manner, and defendant failed to do so here (see People v. Ford, 62 N.Y.2d 275, 282–283, 476 N.Y.S.2d 783, 465 N.E.2d 322; People v. Smith, 13 A.D.3d 1121, 1122–1123, 786 N.Y.S.2d 879, lv denied 4 N.Y.3d 803, 795 N.Y.S.2d 178, 828 N.E.2d 94).

Defendant failed to preserve for our review his contention that the robbery count of the indictment is facially duplicitous (see People v. Becoats, 71 A.D.3d 1578, 1579, 897 N.Y.S.2d 820, affd 17 N.Y.3d 643, 934 N.Y.S.2d 737, 958 N.E.2d 865, cert denied ––– U.S. –––– [Apr. 23, 2012] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). We reject defendant's further contention that he was denied effective assistance of counsel based upon defense counsel's failure to move to dismiss the robbery count of the indictment. “A defendant is not denied effective assistance of trial counsel merely because counsel does not make a motion or argument that has little or no chance of success” (People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883, rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671). In addition, we reject defendant's contention that he was denied effective assistance of counsel based on defense counsel's failure to object to the court's consideration of lesser included offenses or to request that the court consider other lesser included offenses (see generally People v. Turner, 5 N.Y.3d 476, 483–485, 806 N.Y.S.2d 154, 840 N.E.2d 123; People v. Calderon, 66 A.D.3d 314, 320, 884 N.Y.S.2d 29, lv denied 13 N.Y.3d 858, 891 N.Y.S.2d 693, 920 N.E.2d 98). Unlike the failure to raise a statute of limitations defense, defense counsel's failure to object to, or to request, the court's consideration of lesser included offenses is not the type of “clear-cut and completely dispositive” error that rises to the level of ineffective assistance of counsel (Turner, 5 N.Y.3d at 481, 806 N.Y.S.2d 154, 840 N.E.2d 123).

Defendant failed to preserve for our review his contention that his trial should have been severed from that of his codefendants (see People v. Cruz, 272 A.D.2d 922, 923, 709 N.Y.S.2d 717, affd 96 N.Y.2d 857, 730 N.Y.S.2d 29, 754 N.E.2d 1112; People v. Crutchfield, 134 A.D.2d 508, 509, 521 N.Y.S.2d 289, lv denied 71 N.Y.2d 894, 527 N.Y.S.2d 1004, 523 N.E.2d 311). In any event, that contention lacks merit. There was no evidence that the “core of each defense [was] in irreconcilable conflict with the other” (People v. Mahboubian, 74 N.Y.2d 174, 184, 544 N.Y.S.2d 769, 543 N.E.2d 34; see Cruz, 272 A.D.2d at 923, 709 N.Y.S.2d 717). There is thus no merit to defendant's further contention that he received ineffective assistance of counsel based on defense counsel's failure to move to sever his trial from that of his codefendants (see People v. Williams, 281 A.D.2d 933, 934, 722 N.Y.S.2d 683, lv denied 96 N.Y.2d 869, 730 N.Y.S.2d 44, 754 N.E.2d 1127).

Inasmuch as defendant withdrew his motion for a Huntley hearing concerning the statement that he made to the police, defendant waived his present contention that the court should have conducted a Huntley hearing to determine the admissibility of that statement (see generally People v. Jones, 79 A.D.3d 1665, 1665, 917 N.Y.S.2d 774). Further, defendant has not shown that such a motion, if not withdrawn, would have been successful, and we conclude that he was not denied effective assistance of counsel on that ground (see generally People v. Pace, 70 A.D.3d 1364, 1366, 894 N.Y.S.2d 284, lv denied 14 N.Y.3d 891, 903 N.Y.S.2d 779, 929 N.E.2d 1014; People v. Borcyk, 60 A.D.3d 1489, 876 N.Y.S.2d 287, lv denied 12 N.Y.3d 923, 884 N.Y.S.2d 704, 912 N.E.2d 1085).

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

MEMORANDUM: