People v. Costa

VAN DYKE, P. J.

This is an appeal from an order denying a motion

for

a new trial and from a judgment entered upon the jury’s verdict which found appellant guilty of robbery in the second degree.

After appellant filed his opening brief in propria persona, this court upon his application appointed an experienced and able member of the Bar to represent him on appeal. Counsel so appointed thereafter advised appellant and this court that a thorough examination of the record and a research of the law in relation to the facts disclosed no meritorious grounds of appeal. Upon appellant’s request counsel

[447]

so appointed was relieved of his assignment, and appellant was permitted to file a closing brief.

After reviewing the entire record and considering the contentions made by appellant, we are in complete agreement with counsel’s conclusion that there is no meritorious ground of appeal in this ease.

Appellant was arrested shortly after a passerby saw him fleeing from the scene of the robbery. At that time and at his trial he was positively identified by the victim as the person who forcibly took from his person a wallet which contained $16.44. The evidence need not be detailed, as appelpant concedes that it is sufficient to support the jury’s finding that he was guilty of the crime charged. His contentions are that he was denied his constitutional rights and deprived of a fair and impartial trial due to errors of the trial court and prejudicial misconduct of the district attorney. These contentions cannot be sustained.

At all stages of the proceedings appellant was represented by counsel whom he had selected and retained. However, he claims that he was denied the right to counsel of his choice by reason of the fact that the trial court refused a request for a continuance to enable appellant to make a substitution of attorneys. The request was made at the outset of the trial, and the granting or denial thereof rested within the discretion of the trial court. In the absence of a showing of prejudice, and he makes none, the ruling complained of cannot serve as the basis for reversal of the judgment.