PEOPLE v. DeHANEY

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

The PEOPLE, etc., respondent, v. Kashaine DeHANEY, appellant.

Decided: October 27, 2009

MARK C. DILLON, J.P., ANITA R. FLORIO, ARIEL E. BELEN, and SHERI S. ROMAN, JJ. Philip H. Schnabel, Chester, N.Y., for appellant, and appellant pro se. Francis D. Phillips II, District Attorney, Goshen, N.Y. (Robert H. Middlemiss and Andrew R. Kass of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.), rendered February 29, 2008, convicting him of attempted assault in the first degree, assault in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the County Court properly denied that branch of his omnibus motion which was to suppress his statements to law enforcement officials.   The record does not support the defendant's assertion that those statements were obtained in violation of his right to counsel (see People v. Bing, 76 N.Y.2d 331, 559 N.Y.S.2d 474, 558 N.E.2d 1011;  People v. Orlando, 61 A.D.3d 1001, 878 N.Y.S.2d 185;  People v. Tyler, 43 A.D.3d 633, 841 N.Y.S.2d 193;  People v. Garcia, 40 A.D.3d 541, 837 N.Y.S.2d 84;  People v. Clarke, 298 A.D.2d 259, 748 N.Y.S.2d 376;  People v. Acosta, 259 A.D.2d 422, 688 N.Y.S.2d 22).

 “[T]o the extent that the defendant bases his ineffective assistance claim on the failure of the defense counsel to make certain applications, there can be no denial of effective assistance of trial counsel arising from counsel's failure to make a motion or argument that has little or no chance of success” (People v. Carter, 44 A.D.3d 677, 679, 843 N.Y.S.2d 381 [citations omitted];  see People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883).   In addition, since the judgment of conviction was based on legally sufficient evidence, the defendant's challenges to the instructions given to the grand jury are not reviewable (see CPL 210.30[6];  People v. Folkes, 43 A.D.3d 956, 957, 841 N.Y.S.2d 365;  People v. Hall, 32 A.D.3d 864, 864, 820 N.Y.S.2d 526;  People v. Bedell, 272 A.D.2d 622, 622, 709 N.Y.S.2d 414).

 Furthermore, the fact that the sentence imposed after trial was greater than the sentence offered during plea negotiations is no indication that the defendant was punished for exercising his right to proceed to trial (see People v. Zurita, 64 A.D.3d 800, 883 N.Y.S.2d 577;  People v. Davis, 27 A.D.3d 761, 762, 815 N.Y.S.2d 612).   It is to be anticipated that sentences imposed after trial may be more severe than those proposed in connection with a plea (see People v. Pena, 50 N.Y.2d 400, 429 N.Y.S.2d 410, 406 N.E.2d 1347, cert. denied 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814;  People v. Webb, 233 A.D.2d 469, 650 N.Y.S.2d 252).   Moreover, the sentence imposed was not excessive (see People v. Felix, 58 N.Y.2d 156, 460 N.Y.S.2d 1, 446 N.E.2d 757;  People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's contentions, raised in his supplemental pro se brief, are without merit.

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