People v Flowers

People v Flowers 2014 NY Slip Op 07179 Decided on October 22, 2014 Appellate Division, Second 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 October 22, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
THOMAS A. DICKERSON, J.P.
JOHN M. LEVENTHAL
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.
2012-09421
(Ind. No. 6490/08)

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

v

Immanuel Flowers, appellant.

Seymour W. James, Jr., New York, N.Y. (Lawrence T. Hausman of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J. Twersky of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a resentence of the Supreme Court, Kings County (Marrus, J.), imposed October 3, 2012, upon his conviction of criminal possession of a weapon in the second degree, upon a jury verdict, after remittitur from this Court for resentencing (People v Flowers, 97 AD3d 693), the resentence being an indeterminate term of imprisonment of 20 years to life as a persistent violent felony offender.

ORDERED that the resentence is affirmed.

The defendant's contention that the resentence imposed was improperly based on counts which were dismissed at trial for lack of legally sufficient evidence is unpreserved for appellate review (see CPL 470.05[2]; see also People v Harris, 101 AD3d 900, 900; People v Stanley, 50 AD3d 1066, 1067-1068; People v Rambali, 27 AD3d 582, 582), and, in any event, is without merit (see People v Harris, 101 AD3d at 900; People v Stanley, 50 AD3d at 1067-1068). Furthermore, defense counsel's failure to register an objection to this claimed error at resentencing did not constitute ineffective assistance of counsel, as defense counsel could not have been ineffective for failing to advance an argument that had no chance of success (see People v Caban, 5 NY3d 143, 152; People v DiPippo, 117 AD3d 1076, 1077).

The resentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

DICKERSON, J.P., LEVENTHAL, SGROI and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court