Opinion
2012-11-16
The PEOPLE of the State of New York, Respondent, v. Archangel L. SOLER, Jr., Defendant–Appellant.
John E. Tyo, Shortsville, for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of Counsel), for Respondent.
John E. Tyo, Shortsville, for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.
MEMORANDUM:
On appeal from a judgment convicting him, upon a jury verdict, of burglary in the third degree (Penal Law § 140.20) and grand larceny in the fourth degree (§ 155.30[1] ), defendant contends that the verdict is against the weight of the evidence. Although an acquittal would not have been unreasonable ( see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that, viewing the evidence in light of the elements of the crimes as charged to the jury ( see id. at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), the verdict is not 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).
Defendant further contends that he was denied effective assistance of counsel because defense counsel did not facilitate defendant's request to appear before the grand jury. We reject that contention, inasmuch as “defendant failed to establish that he was prejudiced by the failure of his attorney to effectuate his appearance before the grand jury” ( People v. Simmons, 10 N.Y.3d 946, 949, 862 N.Y.S.2d 852, 893 N.E.2d 130;see also People v. Ponder, 42 A.D.3d 880, 881, 838 N.Y.S.2d 767,lv. denied9 N.Y.3d 925, 844 N.Y.S.2d 180, 875 N.E.2d 899). Indeed, defendant never informed County Court why he wished to testify, nor did he explain how his testimony would have affected the outcome of the grand jury proceedings. Instead, defendant stated that he wanted to prove that his constitutional rights had been violated, but he did not specify which rights had been violated or how they had been violated. Thus, “there is no claim that had [defendant] testified in the grand jury, the outcome would have been different” ( Simmons, 10 N.Y.3d at 949, 862 N.Y.S.2d 852, 893 N.E.2d 130;see People v. Rojas, 29 A.D.3d 405, 406, 814 N.Y.S.2d 624,lv. denied7 N.Y.3d 794, 821 N.Y.S.2d 824, 854 N.E.2d 1288). We also note that defendant did not testify at trial ( see People v. Sutton, 43 A.D.3d 133, 136, 839 N.Y.S.2d 746,affd.10 N.Y.3d 946, 862 N.Y.S.2d 852, 893 N.E.2d 130). Defendant'sremaining contentions regarding defense counsel's alleged ineffectiveness are without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.