contention of defendant defense in New York

2010Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).

2009Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), and according great deference to the jury’s resolution of credibility issues, we conclude that the verdict is not contrary to the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).

2010We reject the contention of defendant that defense counsel was ineffective in failing to preserve that challenge for our review inasmuch as defendant failed to demonstrate that it would be meritorious (see People v Bassett, 55 AD3d 1434, 1438 [2008], lv denied 11 NY3d 922 [2009]).

2009We reject the contention of defendant that defense counsel was ineffective in failing to preserve certain contentions for our review. “ ‘Deprivation of appellate review . . . does not per se establish ineffective assistance of counsel’ . . . but, rather, a defendant must also show that his or her contention would be meritorious upon appellate review,” and defendant failed to make that showing (People v Bassett, 55 AD3d 1434, 1438 [2008], lv denied 11 NY3d 922 [2009]).

2010Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).

2009Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), and according great deference to the jury’s resolution of credibility issues, we conclude that the verdict is not contrary to the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).

2010Defendant failed to meet his burden of demonstrating “ ‘the absence of strategic or other legitimate explanations’ for [defense] counsel’s’ ’’ failure to do so (People v Benevento, 91 NY2d 708, 712 [1998]).

2008Defendant has failed “ ‘to demonstrate the absence of strategic or other legitimate explanations’ for [defense] counsel’s alleged shortcomings” (People v Benevento, 91 NY2d 708, 712 [1998]).

2009Finally, we conclude that the evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defense counsel provided meaningful representation at the probation revocation hearing (see generally People v Baldi, 54 NY2d 137, 147 [1981]).

2008We further reject the contention of defendant that defense counsel’s failure to request the charge prior to summations deprived him of his right to effective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]).

2010Indeed, there is no support in the record for the contention of defendant that defense counsel misinformed him about a promised sentence cap and, to the extent that he relies upon alleged misrepresentations by defense counsel that are outside the record on appeal, the proper vehicle for challenging those alleged misrepresentations is a motion pursuant to CPL article 440 (see People v Gilchrist, 251 AD2d 1030, 1031 [1998], lv denied 92 NY2d 925 [1998]).

2010We reject the contention of defendant that defense counsel’s failure to raise that contention before the jury was discharged constituted ineffective assistance of counsel (see generally People v Carter, 7 NY3d 875, 876-877 [2006]).

2010Finally, although the challenge by defendant to the severity of the sentence in each appeal is not encompassed by the waiver of the right to appeal inasmuch as “defendant waived his right to appeal before [the court] advised him of the potential periods of imprisonment that could be imposed” (People v Mingo, 38 AD3d 1270, 1271 [2007]), we nevertheless conclude that the sentences are not unduly harsh or severe.

2009The record also does not support the contention of defendant that defense counsel took a position adverse to that of defendant during argument of his pro se motion to withdraw the plea (see People v Klumpp, 269 AD2d 798, 799 [2000], lv denied 94 NY2d 922 [2000]), and thus it was not necessary for defense counsel to seek to withdraw as defendant’s attorney or for the court to assign new counsel for the motion (cf. People v Hunter, 35 AD3d 1228 [2006]; People v Singletary, 233 AD2d 849 [1996]).

2009The contention of defendant that defense counsel was ineffective in failing to object to the condition of his probation requiring sex offender treatment is not properly before us inasmuch as defen dant failed to appeal from the underlying judgment of conviction (see People v Grzywaczewski, 61 AD3d 699 [2009]; People v Postula, 50 AD3d 1581 [2008], lv denied 10 NY3d 938 [2008]; see also People v Satiro, 28 AD3d 497 [2006]).

2008We reject the contention of defendant that defense counsel’s erroneous statement constituted ineffective assistance of counsel inasmuch as defendant failed to demonstrate “ ‘that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial’ ” (People v McDonald, 1 NY3d 109, 115 [2003], quoting Hill v Lockhart, 474 US 52, 59 [1985]; see also People v Ford, 86 NY2d 397, 404-405 [1995]).

2008We reject the contention of defendant that defense counsel’s erroneous statement constituted ineffective assistance of counsel inasmuch as defendant failed to demonstrate “ ‘that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial’ ” (People v McDonald, 1 NY3d 109, 115 [2003], quoting Hill v Lockhart, 474 US 52, 59 [1985]; see also People v Ford, 86 NY2d 397, 404-405 [1995]).

2008We reject the contention of defendant that defense counsel’s erroneous statement constituted ineffective assistance of counsel inasmuch as defendant failed to demonstrate “ ‘that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial’ ” (People v McDonald, 1 NY3d 109, 115 [2003], quoting Hill v Lockhart, 474 US 52, 59 [1985]; see also People v Ford, 86 NY2d 397, 404-405 [1995]).

2005“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 Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]; see People v Vega, 145 AD2d 924 , 925 [1988], lv denied 73 NY2d 984 [1989]).

2005“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 Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]; see People v Vega, 145 AD2d 924 , 925 [1988], lv denied 73 NY2d 984 [1989]).

2005“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 Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]; see People v Vega, 145 AD2d 924 , 925 [1988], lv denied 73 NY2d 984 [1989]).

2005We reject the contention of defendant that defense counsel’s failure to inquire into the weight of the cocaine seized from him or to seek suppression of the cocaine constitutes ineffective assistance of counsel (see People v Strempack, 71 NY2d 1015, 1016 [1988]).