Opinion
2015-05-08
The PEOPLE of the State of New York, Respondent, v. Tige BILLINGSLEY, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, SCONIERS, AND VALENTINO, JJ.
MEMORANDUM:
On appeal from a judgment convicting him following a nonjury trial of, inter alia, assault in the second degree (Penal Law § 120.05[12] ), defendant contends that the evidence is legally insufficient with respect to two elements of that crime, i.e., his age and the physical injury sustained by the victim. Because defendant's motion for a trial order of dismissal was not “ ‘specifically directed’ at th [ose] alleged error[s],” defendant failed to preserve his contention for our review ( People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). To the extent that defendant preserved for our review his challenge to the sufficiency of the corroboration of the accomplice testimony, we reject that challenge. The victim's equivocal in-court identification “was sufficient to satisfy the minimal requirements of the accomplice corroboration statute” ( People v. Jones, 85 N.Y.2d 823, 825, 623 N.Y.S.2d 836, 647 N.E.2d 1344).
Viewing the evidence in light of the elements of the crimes in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's contention that the verdict is against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Indeed, based upon our independent review of the evidence, we conclude that a different verdict would have been unreasonable ( see People v. Peters, 90 A.D.3d 1507, 1508, 934 N.Y.S.2d 734, lv. denied 18 N.Y.3d 996, 945 N.Y.S.2d 651, 968 N.E.2d 1007; see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
We reject defendant's further contention that he was denied effective assistance of counsel based on defense counsel's failure to move for severance. It is well settled that “[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to ‘make a motion or argument that has little or no chance of success' ” ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213, quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883, rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671). We conclude that a motion for severance of counts of the indictment had little or no chance of success ( seeCPL 200.20 [2][b] ).
Defendant's remaining contention involves matters that are outside the record on appeal and must be raised by way of a motion pursuant to CPL 440.10 ( see People v. Fox, 124 A.D.3d 1252, 1253, 999 N.Y.S.2d 293).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.