People v. Jurjens

291 A.D.2d 839, 737 N.Y.S.2d 891, 2002 N.Y. App. Div. LEXIS 947

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 2002
• Status: Published

Opinion

—Appeal from a judgment of Ontario County Court (Doran, J.), entered September 29, 2000, convicting defendant after a jury trial of felony driving while intoxicated (two counts).

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 two counts of driving while intoxicated as a felony (Vehicle and Traffic Law § 1192 [2], [3]; § 1193 [1] [c]). Defendant contends that he received ineffective assistance of counsel because defense counsel failed to move for inspection of the grand jury minutes, for a probable cause hearing, and for a Huntley hearing. We disagree. The failure to make pretrial motions does not, by itself, constitute ineffective assistance of counsel (see, People v Rivera, 71 NY2d 705, 709; People v Willis, 261 AD2d 946, lv denied 93 NY2d 1029). Rather, a defendant must “demonstrate the absence of strategic or other legitimate explanations for counsel’s failure to request a particular hearing” (People v Rivera, supra at 709), and defendant failed to do so here (see, People v Waliyuddin, 286 AD2d 915; People v Workman, 277 AD2d 1029, 1031-1032, lv denied 96 NY2d 764; People v Willis, supra). The evidence, the law, and the circumstances of this case, viewed in totality and as of the time of representation, establish that defendant received meaningful representation (see, People v Baldi, 54 NY2d 137, 147; People v Valentin, 212 AD2d 1052, lv denied 85 NY2d 915).

The verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495; People v Marek, 284 AD2d 994; People v Rutledge, 277 AD2d 960, 961, lv denied 96 NY2d 738). Furthermore, “[t]he fact that defendant was sentenced to a term of incarceration greater than that offered as part of a pretrial plea offer does not render the sentence unduly harsh” (People v Maddox, 272 AD2d 884, 885, lv denied 95 NY2d 867; see, People v Stephens, 219 AD2d 854, 855, lv denied 87 NY2d 851). Contrary to the contention of defendant, there is no indication that the sentence imposed was “inflicted as punishment for insisting upon a trial” (People v Walker, 234 AD2d 962, 964, lv denied 89 NY2d 1042). The sentence is not otherwise unduly harsh or severe. Present — Pigott, Jr., P.J., Hayes, Hurlbutt, Kehoe and Burns, JJ.