        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

607
KA 11-00677
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EVERETT C. MCINTOSH, II, DEFENDANT-APPELLANT.


WILLIAMS, HEINL, MOODY & BUSCHMAN, P.C., AUBURN (RYAN JAMES MULDOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Thomas G.
Leone, J.), rendered October 28, 2010. The judgment convicted
defendant, upon a nonjury verdict, of attempted robbery in the second
degree and attempted grand larceny in the third degree.

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

     Memorandum: On appeal from a judgment convicting him after a
bench trial of attempted robbery in the second degree (Penal Law §§
110.00, 160.10 [3]) and attempted grand larceny in the third degree
(§§ 110.00, 155.35 [1]), defendant contends that the verdict is
against the weight of the evidence in two respects, i.e., that
defendant was attempting to exercise control of the victims’ vehicle
in a manner inconsistent with their ownership rights, and that he used
force in an attempt to retain control of the property. We reject
defendant’s contention and conclude that the verdict is supported by
the weight of the evidence in both of those respects (see generally
People v Bleakley, 69 NY2d 490, 495).

     By failing to object to County Court’s ultimate Sandoval ruling,
defendant failed to preserve for our review his contention that the
ruling constitutes an abuse of discretion (see People v Walker, 66
AD3d 1331, lv denied 13 NY3d 942). In any event, “the proof of
defendant’s guilt is overwhelming, and there is no significant
probability that the [court] would have acquitted defendant had it not
been for the [alleged] error. Thus, the [alleged] error is harmless”
(People v Arnold, 298 AD2d 895, 896, lv denied 99 NY2d 580; see
generally People v Grant, 7 NY3d 421, 423-425).

     Contrary to defendant’s further contention, he was not denied
effective assistance of counsel by defense counsel’s failure to raise
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                                                         KA 11-00677

an intoxication defense, “inasmuch as there was ‘a paucity of evidence
that defendant exhibited significant signs of intoxication or that his
mental state was affected by alcohol’ ” (People v Murphy, 68 AD3d
1730, 1731, lv denied 14 NY3d 843). Finally, the sentence is not
unduly harsh or severe.




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
