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

1385
KA 12-00207
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TERENCE HAMPTON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered January 5, 2012. The judgment
convicted defendant, upon a jury verdict, of robbery in the first
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice by reducing the sentence to a determinate term of imprisonment
of 15 years and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of robbery in the first degree (Penal Law § 160.15
[4]). He was sentenced, as a second felony offender, to a determinate
term of incarceration of 24 years to be followed by a five-year period
of postrelease supervision. We reject defendant’s contention that
Supreme Court erred in failing to rule on his pretrial request for
substitution of counsel. “Although the court should have expressly
denied defendant’s motion on the record, we conclude that the record
is sufficient to establish conclusively that the motion was implicitly
denied” (People v Watkins, 77 AD3d 1403, 1404, lv denied 15 NY3d 956).
Moreover, we conclude that the court adequately “inquir[ed] into the
nature of the disagreement [and] its potential for resolution” (People
v Hobart, 286 AD2d 916, 916, lv denied 97 NY2d 683 [internal quotation
marks omitted]). That disagreement primarily arose from defense
counsel’s refusal to make a motion to dismiss the indictment pursuant
to CPL 30.30, which in fact was frivolous. The court in any event
allowed defendant to make the CPL 30.30 motion on a pro se basis, and
denied the motion. The court properly declined to inquire into the
remaining grounds for defendant’s request for substitution of counsel
because his assertions “failed to suggest a serious possibility of
good cause for substitution” (Watkins, 77 AD3d at 1404 [internal
quotation marks omitted]). “[I]nasmuch as defendant did not
                                 -2-                          1385
                                                         KA 12-00207

subsequently express dissatisfaction with defense counsel or renew his
request for new counsel,” we conclude that defendant thereafter
abandoned any further request for substitution of counsel (People v
Bennett, 94 AD3d 1570, 1571, lv denied 19 NY3d 994, reconsideration
denied 19 NY3d 1101).

     Viewing the evidence in light of the elements of the crime as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s further contention that the verdict is against the
weight of the evidence with respect to the issue of identification
(see generally People v Bleakley, 69 NY2d 490, 495). “The jury’s
resolution of credibility and identification issues is entitled to
great weight . . . , and it cannot be said that the jury failed to
give the evidence the weight it should be accorded” (People v Mobley,
49 AD3d 1343, 1345, lv denied 11 NY3d 791 [internal quotation marks
omitted]). Finally, we agree with defendant that the sentence is
unduly harsh and severe, particularly inasmuch as defendant had no
prior history of violent crime and is relatively young. We therefore
modify the judgment as a matter of discretion in the interest of
justice by reducing the sentence imposed to a determinate term of
imprisonment of 15 years, to be followed by the five-year period of
postrelease supervision previously imposed.




Entered:   January 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
