Opinion
KA 99-05185
June 14, 2002.
Appeal from a judgment of Supreme Court, Erie County (Forma, J.), entered February 8, 1999, convicting defendant after a jury trial of, inter alia, burglary in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN C. RUSSO-McLAUGHLIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (JOSEPH KILBRIDGE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, HAYES, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of burglary in the second degree (Penal Law § 140.25) and robbery in the third degree (§ 160.05) and further convicting him following a separate bench trial of criminal possession of stolen property in the fifth degree (§ 165.40) and unauthorized use of a motor vehicle in the third degree (§ 165.05 [1]). We conclude that the verdict in each trial is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495). We further conclude that defendant was not deprived of effective assistance of counsel as a result of defense counsel's comments with respect to defendant's pro se motions. The record establishes that defense counsel's comments did not affect Supreme Court's determination of the pro se motions ( cf. People v. Caple, 279 A.D.2d 635, 636, lv denied 96 N.Y.2d 798; People v. Nin, 276 A.D.2d 350, 351, lv denied 96 N.Y.2d 737; People v. Nawabi, 265 A.D.2d 156, lv denied 94 N.Y.2d 865; People v. Zirpola, 237 A.D.2d 967, lv denied 90 N.Y.2d 899; People v. Rodriguez, 189 A.D.2d 684, 685, lv denied 81 N.Y.2d 892). In any event, the court had no obligation to entertain pro se motions made at a time when defendant was represented by counsel ( see People v. Rodriguez, 95 N.Y.2d 497, 501-503).
We further conclude that the in-court identification by the complainant, who was acquainted with defendant and previously had identified him as the perpetrator, was not tainted by the complainant's inadvertent viewing of defendant's being brought into the courtroom in handcuffs ( cf. People v. Duuvon, 77 N.Y.2d 541, 545; People v. Evans, 291 A.D.2d 868, 869; People v. Howington, 284 A.D.2d 1009, 1009, lv denied 97 N.Y.2d 683). We have reviewed defendant's challenge to the severity of the sentence and conclude that it is without merit.