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

629
KA 10-01596
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RODNEY HARRIS, DEFENDANT-APPELLANT.


THOMAS THEOPHILOS, BUFFALO, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered July 6, 2010. The judgment convicted
defendant, upon a nonjury verdict, of burglary in the second degree
and robbery in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
following a nonjury trial of burglary in the second degree (Penal Law
§ 140.25 [1] [d]) and robbery in the second degree (§ 160.10 [2] [b]).
Viewing the evidence in light of the elements of the crimes in this
nonjury trial (see People v Danielson, 9 NY3d 342, 349), we conclude
that the verdict is not against the weight of the evidence (see
generally People v Bleakley, 69 NY2d 490, 495). Defendant further
contends that County Court erred in considering, and in ultimately
convicting him of, robbery in the second degree (§ 160.10 [2] [b]) as
a lesser included offense of robbery in the first degree (§ 160.15
[2]), and burglary in the second degree (§ 140.25 [1] [d]) as a lesser
included offense of burglary in the first degree (§ 140.30 [1]).
Pursuant to CPL 300.50 (1), “[a]ny error respecting such
[consideration by the court] . . . is waived by the defendant unless
he [or she] objects thereto” in a timely manner, and defendant failed
to do so here (see People v Ford, 62 NY2d 275, 282-283; People v
Smith, 13 AD3d 1121, 1122-1123, lv denied 4 NY3d 803).

     Defendant failed to preserve for our review his contention that
the robbery count of the indictment is facially duplicitous (see
People v Becoats, 71 AD3d 1578, 1579, affd 17 NY3d 643, cert denied
___ US ___ [Apr. 23, 2012]), and we decline to exercise our power to
review that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). We reject defendant’s further
contention that he was denied effective assistance of counsel based
                                 -2-                           629
                                                         KA 10-01596

upon defense counsel’s failure to move to dismiss the robbery count of
the indictment. “A defendant is not denied effective assistance of
trial counsel merely because counsel does not make a motion or
argument that has little or no chance of success” (People v Stultz, 2
NY3d 277, 287, rearg denied 3 NY3d 702). In addition, we reject
defendant’s contention that he was denied effective assistance of
counsel based on defense counsel’s failure to object to the court’s
consideration of lesser included offenses or to request that the court
consider other lesser included offenses (see generally People v
Turner, 5 NY3d 476, 483-485; People v Calderon, 66 AD3d 314, 320, lv
denied 13 NY3d 858). Unlike the failure to raise a statute of
limitations defense, defense counsel’s failure to object to, or to
request, the court’s consideration of lesser included offenses is not
the type of “clear-cut and completely dispositive” error that rises to
the level of ineffective assistance of counsel (Turner, 5 NY3d at
481).

     Defendant failed to preserve for our review his contention that
his trial should have been severed from that of his codefendants (see
People v Cruz, 272 AD2d 922, 923, affd 96 NY2d 857; People v
Crutchfield, 134 AD2d 508, 509, lv denied 71 NY2d 894). In any event,
that contention lacks merit. There was no evidence that the “core of
each defense [was] in irreconcilable conflict with the other” (People
v Mahboubian, 74 NY2d 174, 184; see Cruz, 272 AD2d at 923). There is
thus no merit to defendant’s further contention that he received
ineffective assistance of counsel based on defense counsel’s failure
to move to sever his trial from that of his codefendants (see People v
Williams, 281 AD2d 933, 934, lv denied 96 NY2d 869).

     Inasmuch as defendant withdrew his motion for a Huntley hearing
concerning the statement that he made to the police, defendant waived
his present contention that the court should have conducted a Huntley
hearing to determine the admissibility of that statement (see
generally People v Jones, 79 AD3d 1665, 1665). Further, defendant has
not shown that such a motion, if not withdrawn, would have been
successful, and we conclude that he was not denied effective
assistance of counsel on that ground (see generally People v Pace, 70
AD3d 1364, 1366, lv denied 14 NY3d 891; People v Borcyk, 60 AD3d 1489,
lv denied 12 NY3d 923).




Entered:   July 6, 2012                         Frances E. Cafarell
                                                Clerk of the Court
