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People v. Hernandez

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 5, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
RHONDELESIA HERNANDEZ, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Maxwell Wiley, J. at request for new counsel; Edwin Torres, J. at jury trial and sentence), rendered September 11, 2007, convicting defendant of robbery in the first and second degrees, and sentencing her, as a persistent violent felony offender, to an aggregate term of 20 years to life, unanimously affirmed.

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.

Gonzalez, P.J., Buckley, Catterson, McGuire, Renwick, JJ.

4905/06

Since defendant withdrew her request for a new attorney, she waived her present claim that the court should have assigned new counsel. There is no support in the record for her argument that the attorney influenced her to withdraw her motion. In any event, as an alternative holding, we conclude that there is no basis for reversal. Defendant concedes that her boilerplate motion did not establish good cause for a substitution, but argues that "an irreconcilable conflict had developed as soon as counsel called his client a liar." However, the conduct of counsel characterized as "calling his client a liar" consisted of the attorney's permissible defense of his own performance (see People v Nelson, 7 NY3d 883 [2006]), in which he described defendant's allegations as "inaccurate," "incorrect," and "misleading." Counsel appropriately brought these inaccuracies to the court's attention (see People v DePallo, 96 NY2d 437, 441-442 [2001]). Moreover, counsel did not accuse his client of perjury or falsehood, impugn her credibility before a trier of fact (compare People v Berroa, 99 NY2d 134 [2002]; People v Darrett, 2 AD3d 16 [2003]), or demonstrate any inability to continue providing effective assistance.

Defendant's challenge to the constitutionality of her adjudication as a persistent violent felony offender is not preserved for our review (People v Rosen, 96 NY2d 329, cert denied 534 US 899 [2001]), and we decline to review it in the interest of justice. As an alternative holding, we conclude that it is without merit (see Almendarez-Torres v United States, 523 US 224 [1998]; People v Leon, 10 NY3d 122, 126 [2008], cert denied 554 US __, 128 S Ct 2976 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090505

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