GLENNON LAW FIRM, P.C., ROCHESTER (PETER J. GLENNON OF
COUNSEL), FOR DEFENDANT-APPELLANT.
KONOVALCHUK, DEFENDANT-APPELLANT PRO SE.
DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN
OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.
from a judgment of the Supreme Court, Monroe County (Alex R.
Renzi, J.), rendered May 23, 2012. The judgment convicted
defendant, upon a jury verdict, of robbery in the second
degree (three counts) and robbery in the third degree.
hereby ORDERED that the judgment so appealed from is
Defendant appeals from a judgment convicting him upon a jury
verdict of three counts of robbery in the second degree
(Penal Law § 160.10  [b]) and one count of robbery in
the third degree (§ 160.05). Defendant contends that
Supreme Court, in sentencing him, improperly penalized him
for exercising his right to a jury trial. We reject that
contention. " [T]he mere fact that a sentence imposed
after trial is greater than that offered in connection with
plea negotiations is not proof that defendant was punished
for asserting his right to trial' " (People v
Chappelle, 14 A.D.3d 728, 729, lv denied 5
N.Y.3d 786; see People v Murphy, 68 A.D.3d 1730,
1731, lv denied 14 N.Y.3d 843). Indeed, "
[g]iven that the quid pro quo of the bargaining
process will almost necessarily involve offers to moderate
sentences that ordinarily would be greater, it is also to be
anticipated that sentences handed out after trial may be more
severe than those proposed in connection with a plea'
" (People v Martinez, 26 N.Y.3d 196, 200). We
conclude that "the record shows no retaliation or
vindictiveness against the defendant for electing to proceed
to trial" (People v Shaw, 124 A.D.2d 686, 686,
lv denied 69 N.Y.2d 750; see People v
Brown, 67 A.D.3d 1427, 1427-1428, lv denied 14
N.Y.3d 839). The sentence is not unduly harsh or severe.
reject the contention of defendant in his pro se supplemental
brief that he was deprived of his right to counsel when the
court summarily denied his request for new counsel without
conducting any inquiry or giving him an opportunity to state
the grounds for the motion. A defendant may be entitled to
new assigned counsel "upon showing good cause for a
substitution, ' such as a conflict of interest or other
irreconcilable conflict with counsel" (People v
Sides, 75 N.Y.2d 822, 824). In determining whether good
cause exists to substitute counsel, the court should consider
"the timing of the defendant's request, its effect
on the progress of the case and whether present counsel will
likely provide the defendant with meaningful assistance"
(People v Linares, 2 N.Y.3d 507, 510). Where a
defendant makes a "seemingly serious request" for
new assigned counsel, the court is obligated to "make
some minimal inquiry" (Sides, 75 N.Y.2d at
824-825; see People v Porto, 16 N.Y.3d 93, 99-100).
Here, despite the court's initial interruption of
defendant while he was stating the reasons for his request
for new counsel, defendant thereafter made additional
statements, and we conclude that the record establishes that
defendant was able to set forth his contention that he was
requesting new counsel because his counsel was ineffective.
Inasmuch as those stated grounds were wholly without merit,
there was no reason for the court to conduct any further
inquiry. Defendant made no "specific factual allegations
that would indicate a serious conflict with counsel"
(Porto, 16 N.Y.3d at 100-101) and, indeed, it
appeared that the motion was merely a delaying tactic
(see People v Woods, 110 A.D.3d 748, 748, lv
denied 23 N.Y.3d 969).
to defendant's further contention in his pro se
supplemental brief, viewing the evidence in light of the
elements of the crime of robbery in the second degree
(see People v Danielson, 9 N.Y.3d 342, 349), we
conclude that the verdict with respect to those robbery
counts is not against the weight of the evidence (see
generally People v Bleakley, 69 N.Y.2d 490, 495).
Although a different verdict would not have been
unreasonable, it cannot be said that the jurors failed to
give the evidence the weight it should be accorded (see
People v Ettleman, 109 A.D.3d 1126, 1128, lv
denied 22 N.Y.3d 1198).
reject defendant's remaining contention in his pro se
supplemental brief that he received ineffective assistance of
counsel. With respect to counsel's failure to object to
the court's statement to the prospective jurors at the
start of jury selection that defendant was in custody, the
record shows that the court immediately followed that
statement with an instruction that the prospective jurors
were not to hold it against defendant that he was in custody,
and the prospective jurors agreed that they would not. In
light of that essentially sua sponte curative instruction, we
conclude that any objection by defense counsel would have
been redundant. With respect to counsel's failure to move
to reopen the probable cause hearing after hearing certain
testimony at trial, we conclude that such a motion would have
been without merit because the trial testimony would not have
changed the probable cause determination. It is well settled
that "[t]here 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 N.Y.3d 143,
152, quoting People v Stultz, 2 N.Y.3d 277, 287,
rearg denied 3 N.Y.3d 702; see People v
Simmons, 133 A.D.3d 1275, 1278, lv denied 27
defendant contends that counsel was ineffective in failing to
seek a ruling from the court on that part of defendant's
omnibus motion seeking dismissal of the indictment alleging
that the grand jury proceedings were defective on the ground
that the prosecutor failed to notify the grand jury of
defendant's request pursuant to CPL 190.50 (6) to call
certain witnesses (see generally People v Hill, 5
N.Y.3d 772, 773; People v Rigby, 105 A.D.3d 1383,
1383-1384, lv denied21 N.Y.3d 1019). Defendant
failed, however, to ...