| People v Winchell |
| 2007 NY Slip Op 09964 [46 AD3d 1096] |
| December 20, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v William D.Winchell, Appellant. |
—[*1] Donald F. Cerio Jr., District Attorney, Wampsville (Melissa C. Stearns of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Madison County (DiStefano,J.), rendered March 23, 2006, upon a verdict convicting defendant of the crimes of robbery in thesecond degree, menacing in the third degree and assault in the third degree.
Defendant was charged in an indictment with various crimes arising out of an incident inwhich he and Bruce Joslyn threatened the victim and took money from him, and defendant"head-butted" the victim in the face. After a jury trial, defendant was convicted of robbery in thesecond degree, menacing in the third degree and assault in the third degree. He was sentenced tosix years in prison to be followed by three years of postrelease supervision. Defendant nowappeals, asserting that the verdict was against the weight of the evidence. We disagree.
Defendant argues that the evidence did not demonstrate that he possessed the requisite intentto rob the victim (see Penal Law § 160.10 [1]); rather, he maintains, the credibletestimony supports a finding that he intended only to assault the victim. Further, defendantchallenges the finding that the victim suffered a physical injury, an element of assault in the thirddegree (see Penal Law § 120.00 [1]; § 10.00 [9]), as being unsupported bythe weight of the evidence. In reviewing the weight of the evidence, we must determine whether"a different finding would not have been unreasonable" and, if not, "then [we] must, like the trierof fact below, 'weigh the relative probative force of conflicting testimony and the relativestrength of conflicting inferences [*2]that may be drawn from thetestimony' " (People v Bleakley, 69 NY2d 490, 495 [1987] [citation omitted]; see People v Danielson, 9 NY3d342, 348 [2007]; People vRomero, 7 NY3d 633, 643-644 [2006]).
Here, the victim testified that defendant first blocked his way and then approached moreclosely as Joslyn demanded money. Defendant promised to leave the victim alone if he handedover his money. After the victim complied, defendant threatened to beat him up if he called thepolice. Viewing the evidence in a neutral light and according deference to the factfinder'sopportunity to observe the testimony, we conclude that the jury properly credited the victim'stestimony regarding defendant's participation in the robbery over the conflicting versions of theincident described by defendant and Joslyn. Thus, defendant's conviction of robbery in thesecond degree was not against the weight of the evidence (see Matter of Juan J., 81 NY2d739, 740-741 [1992]; People vMendez, 34 AD3d 697, 698-699 [2006]; Matter of Louis C., 6 AD3d 430, 431 [2004]; cf. People vMorales, 130 AD2d 366, 367-368 [1987]). Furthermore, in light of the victim's testimonythat defendant's "head-butting" him caused a swollen nose and two black eyes and necessitatedthe use of painkillers for two weeks, we conclude that the conviction of assault in the thirddegree is not against the weight of the evidence despite the fact that the victim did not seekmedical treatment (see People vChiddick, 8 NY3d 445, 447-448 [2007]; People v Henderson, 92 NY2d 677,680-681 [1999]; People v Bowen,17 AD3d 1054, 1055-1056 [2005], lv denied 5 NY3d 759 [2005]; People v Liggins, 2 AD3d 1325,1326 [2003]; People v Morales, 245 AD2d 467, 468 [1997], lv denied 92 NY2d902 [1998]).[FN*]
We further reject defendant's argument that he was denied the effective assistance of counseldue to counsel's failure to move to dismiss for legal insufficiency and the decision to call Joslyn,who gave testimony that was inconsistent with defendant's version of the incident. "To prevail onhis claim that he was denied effective assistance of counsel, defendant must demonstrate that hisattorney failed to provide meaningful representation . . . Further, . . .defendant must 'demonstrate the absence of strategic or other legitimate explanations' forcounsel's allegedly deficient conduct" (People v Caban, 5 NY3d 143, 152 [2005] [citations omitted]).Calling Joslyn, whose testimony contradicted the victim's description of the event, reflects areasonable, albeit unsuccessful strategy, and the argument that the evidence was legallyinsufficient "was not so compelling that a failure to make it amounted to ineffective assistance ofcounsel" (People v Carter, 7 NY3d875, 877 [2006]).
Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant's challenges to thelegal sufficiency of the evidence have not been preserved for this Court's review (see e.g. People v White, 41 AD3d1036, 1037 [2007]) and reversal in the interest of justice is not warranted here.