People v. Divine

Judgment, Supreme Court, Bronx County (William T. Martin, J.), rendered May 24, 1988, convicting defendant, after a jury trial, of robbery in the first degree (two counts), and sentencing him, as a second felony offender, to concurrent terms of 11 to 22 years, unanimously affirmed. Order of the same court (John Byrne, J.), entered April 6, 1993, denying defendant’s motion pursuant to CPL 440.10, to vacate judgment, unanimously affirmed. That defendant did not have the same lawyer at every stage of the proceeding did not serve to deny him his right to counsel since the trial court immediately appointed an attorney whenever defendant appeared in court without one (CPL 180.10 [4]). Nor was defendant denied his right to effective assistance of counsel because one of the attorneys representing him failed to interview a possible alibi witness, there being no showing that the trial would have had a different outcome had such interview been conducted (People v Douglas, 178 AD2d 651, lv denied 79 NY2d 946). Defendant’s argument that the complainant testified at the Wade hearing while defendant was absent from the courtroom is unsupported by any evidentiary proof, and thus his motion to vacate the conviction was properly denied. Finally, we find that the trial court did not abuse its discretion in sentencing the defendant. Concur—Murphy, P. J., Milonas, Kupferman, Ross and Nardelli, JJ.