People v. Jurjens

—Appeal from a judgment of Ontario County Court (Doran, J.), entered

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.