Opinion
2015-01-2
The PEOPLE of the State of New York, Respondent, v. Roy BRIGGS, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, LINDLEY AND DeJOSEPH, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a jury verdict of burglary in the second degree (Penal Law § 140.25[2] ), defendant contends that Supreme Court erred in refusing to suppress a statement he made to the police because he invoked his right to counsel before the statement was made and because the statement was obtained through threats and coercion. We reject that contention. The police officer who questioned defendant testified that defendant waived his Miranda rights and agreed to speak with him; he did not recall defendant requesting an attorney; and he did not threaten or coerce defendant. The court did not credit defendant's testimony to the contrary at the suppression hearing. We accord great weight to the determination of the suppression court “ ‘because of its ability to observe and assess the credibility of the witnesses,’ ” and we perceive no basis to disturb its determination (People v. McConnell, 233 A.D.2d 867, 867, 649 N.Y.S.2d 606, lv. denied89 N.Y.2d 987, 656 N.Y.S.2d 746, 678 N.E.2d 1362; see People v. Mateo, 2 N.Y.3d 383, 414, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; People v. Coleman, 306 A.D.2d 941, 941, 760 N.Y.S.2d 797, lv. denied1 N.Y.3d 596, 776 N.Y.S.2d 228, 808 N.E.2d 364).
Viewing the evidence in light of the elements of the crime as charged to the jury ( 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). We likewise reject defendant'sfurther contention that he was denied effective assistance of counsel. Defendant failed to demonstrate the absence of a strategic or other legitimate explanation for defense counsel's failure to object to certain evidence ( see People v. Dombrowski, 94 A.D.3d 1416, 1417, 942 N.Y.S.2d 830, lv. denied19 N.Y.3d 959, 950 N.Y.S.2d 111, 973 N.E.2d 209; see generally People v. Benevento, 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584), and defense counsel's failure to move for a mistrial does not constitute ineffective assistance because the motion would have had little to no chance of success ( see People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883, rearg. denied3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.