People v. McIntosh

Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered October 28, 2010. The judgment convicted defendant, upon a nonjury verdict, of attempted robbery in the second degree and attempted grand larceny in the third degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him after a bench trial of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [3]) and attempted grand larceny in the third degree (§§ 110.00, 155.35 [1]), defendant contends that the verdict is against the weight of the evidence in two respects, i.e., that defendant was attempting to exercise control of the victims’ vehicle in a manner inconsistent with their ownership rights, and that he used force in an attempt to retain control of the property. We reject defendant’s contention and conclude that the verdict is supported by the weight of the evidence in both of those respects (see generally People v Bleakley, 69 NY2d 490 , 495 [1987]).

By failing to object to County Court’s ultimate Sandoval ruling, defendant failed to preserve for our review his contention that the ruling constitutes an abuse of discretion (see People v Walker, 66 AD3d 1331 [2009], lv denied 13 NY3d 942 [2010]). In any event, “the proof of defendant’s guilt is overwhelming, and there is no significant probability that the [court] would have acquitted defendant had it not been for the [alleged] error. Thus, the [alleged] error is harmless” (People v Arnold, 298 AD2d 895 , 896 [2002], lv denied 99 NY2d 580 [2003]; see generally People v Grant, 7 NY3d 421 , 423-425 [2006]).

Contrary to defendant’s further contention, he was not denied effective assistance of counsel by defense counsel’s failure to