People v Clemons

People v Clemons 2016 NY Slip Op 02514 Decided on March 31, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 31, 2016
Mazzarelli, J.P., Renwick, Moskowitz, Kapnick, JJ.
650 2487/13

[*1]The People of the State of New York, Respondent,

v

Zachary Clemons, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Antoine Morris of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Oliver McDonald of counsel), for respondent.

Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered April 25, 2014, convicting defendant, after a jury trial, of robbery in the third degree and grand larceny in the fourth degree, and sentencing him, as a second felony offender, to an aggregate term of three to six years, unanimously affirmed.

The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 349 [2007]). The testimony of the victim, an additional witness, and a police officer provided ample evidence of defendant's guilt.

Defendant was not deprived of effective assistance of counsel regarding his pro se CPL 330.30 motion to set aside the verdict when newly assigned counsel, who had been substituted for the purpose of avoiding any conflict of interest, advised the court that he was not adopting the motion because, in his judgment, it lacked any valid basis. Defendant was not prejudiced, because the court was not obligated to entertain a motion not adopted by counsel (see People v Rodriguez, 95 NY2d 497, 501-503 [2000]), and because defendant does not assert on appeal that the motion contained any ground that would be a basis for reversal (see People v Malave, 106 AD3d 657 [1st Dept 2013], lv denied 21 NY3d 1044 [2013] [defendant not prejudiced by counsel's accurate concession that part of pro se motion was meritless]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 31, 2016

CLERK