People v. Stewartson

1 A.D.3d 281, 767 N.Y.S.2d 586, 2003 N.Y. App. Div. LEXIS 12515

Opinion

Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered November 15, 2001, convicting defendant, after a jury trial, of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of seven years, unanimously affirmed.

The trial court properly refused to submit attempted robbery in the third degree to the jury as a lesser included offense, since there was no reasonable view of the evidence, viewed most favorably to defendant, that the defendant committed the lesser offense but not the greater offense (see People v Lopez, 73 NY2d 214, 221-222 [1989]; People v Simmons, 186 AD2d 95, 96 [1992], lv denied 81 NY2d 976 [1993]).

The court properly exercised its discretion in denying defendant’s request, made at the start of trial, to hire private counsel (see People v Arroyave, 49 NY2d 264, 271-272 [1980]). The last-minute substitution would have caused serious delay and inconvenience, particularly since the People had already brought the victim, a foreign national, back from overseas to testify. Furthermore, defendant did not “demonstrate that the requested adjournment [was] necessitated by forces beyond his control and [was] not simply a dilatory tactic” (id. at 272). Concur—Mazzarelli, J.E, Saxe, Williams, Lerner and Marlow, JJ.