Opinion
2013-03-15
The PEOPLE of the State of New York, Respondent, v. Njera A. WILSON, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant. Njera A. Wilson, Defendant–Appellant Pro Se.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant. Njera A. Wilson, Defendant–Appellant Pro Se.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon a jury verdict, of burglary in the second degree (Penal Law § 140.25[2] ). The general motion by defendant for a trial order of dismissal is insufficient to preserve for our review his contention that the verdict is not supported by legally sufficient evidence ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, we reject defendant's contention. Viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that there is a valid line of reasoning and permissible inferences to support the jury's finding that defendant committed the crime of which he was convicted based upon the evidence at trial ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). We therefore further conclude that defendant was not denied effective assistance of counsel based on defense counsel's failure to move for a trial order of dismissal on more specific grounds. It is well settled that “ ‘[a] defendant is not denied effective assistance of trial counsel [where defense] counsel does not make a motion or argument that has little or no chance of success' ” ( People v. March, 89 A.D.3d 1496, 1497, 933 N.Y.S.2d 477,lv. denied18 N.Y.3d 926, 942 N.Y.S.2d 465, 965 N.E.2d 967, quoting 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).
Defendant further contends that the verdict is against the weight of the evidence because the testimony of the victim was not credible. The credibility issues identified by defendant on appeal were placed before the jury, and “[w]e accord great deference to the [jury's] resolution of [those] credibility issues ... ‘because those who see and hear the witnesses can assess their credibility and reliability in a manner that is far superior to that of reviewing judges who must rely on the printed record’ ” ( People v. Ange, 37 A.D.3d 1143, 1144, 829 N.Y.S.2d 378,lv. denied9 N.Y.3d 839, 840 N.Y.S.2d 766, 872 N.E.2d 879, quoting People v. Lane, 7 N.Y.3d 888, 890, 826 N.Y.S.2d 599, 860 N.E.2d 61). 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 conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Contrary to defendant's contention, the showup identification procedure was not unduly suggestive, and County Court properly permitted the in-court identification of defendant. Although showup procedures are generally disfavored ( see People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337), “such procedures are permitted ‘where [they are] reasonable under the circumstances—that is, when conducted in close geographic and temporal proximity to the crime—and the procedure used was not unduly suggestive’ ” ( People v. Woodard, 83 A.D.3d 1440, 1441, 919 N.Y.S.2d 718,lv. denied17 N.Y.3d 803, 929 N.Y.S.2d 111, 952 N.E.2d 1106, quoting People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611). Here, defendant was apprehended one block from the scene of the crime and within minutes of its occurrence. Also contrary to defendant's contention, the showup procedure was not rendered unduly suggestive by the fact that defendant was handcuffed and in a patrol car when he was returned to the scene of the crime ( see People v. Duuvon, 77 N.Y.2d 541, 545, 569 N.Y.S.2d 346, 571 N.E.2d 654; People v. Santiago, 83 A.D.3d 1471, 1471, 919 N.Y.S.2d 750,lv. denied17 N.Y.3d 800, 929 N.Y.S.2d 108, 952 N.E.2d 1103;People v. Stoneham, 50 A.D.3d 1575, 1576, 856 N.Y.S.2d 418,lv. denied10 N.Y.3d 940, 862 N.Y.S.2d 346, 892 N.E.2d 412).
By failing to object to the court's ultimate Sandoval ruling, defendant failed to preserve for our review his present challenge to that ruling ( see People v. Miller, 59 A.D.3d 1124, 1125, 873 N.Y.S.2d 415,lv. denied12 N.Y.3d 819, 881 N.Y.S.2d 26, 908 N.E.2d 934;People v. Caito, 23 A.D.3d 1135, 1136, 807 N.Y.S.2d 755). In any event, that contention is without merit ( see generally People v. Hayes, 97 N.Y.2d 203, 207–208, 738 N.Y.S.2d 663, 764 N.E.2d 963).
Finally, the contentions of defendant in his pro se supplemental brief do not warrant reversal or modification of the judgment. Specifically, the prosecutor's comments during summation were “either a fair response to defense counsel's summation or fair comment on the evidence” ( People v. McEathron, 86 A.D.3d 915, 916, 926 N.Y.S.2d 249 [internal quotation marks omitted], lv. denied19 N.Y.3d 975, 950 N.Y.S.2d 358, 973 N.E.2d 768). Similarly, the court's Allen charge and its instructions on interested witnesses and the failure to testify were proper ( see People v. Alvarez, 86 N.Y.2d 761, 763, 631 N.Y.S.2d 130, 655 N.E.2d 171;see generally People v. Bell, 38 N.Y.2d 116, 120, 378 N.Y.S.2d 686, 341 N.E.2d 246). We therefore also conclude that defendant's ineffective assistance contention as it relates to defense counsel's failure to object to those comments and charges is without merit ( see Stultz, 2 N.Y.3d at 287, 778 N.Y.S.2d 431, 810 N.E.2d 883).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.