| People v Mosley |
| 2009 NY Slip Op 00783 [59 AD3d 961] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CharnellMosley, Appellant. (Appeal No. 1.) |
—[*1] Charnell Mosley, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), renderedDecember 22, 2004. The judgment convicted defendant, upon a nonjury verdict, of robbery inthe third degree (three counts), assault in the second degree, unauthorized use of a vehicle in thefirst degree and petit larceny (three counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdictof, inter alia, three counts of robbery in the third degree (Penal Law § 160.05) and onecount of assault in the second degree (§ 120.05 [2]). Contrary to defendant's contention,the evidence is legally sufficient to support the conviction of counts one and three of theindictment, which concern the robberies of two banks. "The applicable statutes do not require theuse or display of a weapon nor actual injury or contact with a victim [for a person to be guilty ofrobbery] . . . All that is necessary is that there be a threatened use of force. . . , which may be implicit from the defendant's conduct or gleaned from a view ofthe totality of the circumstances" (People v Rychel, 284 AD2d 662, 663 [2001]; seePenal Law § 160.00; People v Woods, 41 NY2d 279, 282-283 [1977]). Here,the People presented evidence from which defendant's threatened use of force could be implied,i.e., the testimony of the bank employees to whom defendant handed a note upon arriving at therespective banks.
Viewing the evidence in light of the elements of the crimes in this bench trial (see People v Danielson, 9 NY3d342, 349 [2007]), we further conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Although therewas conflicting testimony with respect to the count charging assault in the second degree andthus "an acquittal [on that count] would not have been unreasonable" (People v Danielson, 9 NY3d 342,348 [2007]), we conclude that, "[b]ased on the weight of the credible evidence, the court. . . was justified in finding the defendant guilty beyond a reasonable doubt"(id.; see People v Romero,7 NY3d 633, 642-643 [2006]). [*2]" 'Great deference is to beaccorded to the fact-finder's resolution of credibility issues based upon its superior vantage pointand its opportunity to view witnesses, observe demeanor and hear the testimony' " (People vGritzke, 292 AD2d 805, 805-806 [2002], lv denied 98 NY2d 697 [2002]), and weperceive no basis to disturb the court's credibility determinations (see People v Reddick, 43 AD3d1334, 1335-1336 [2007], lv denied 10 NY3d 815 [2008]).
We reject the contention of defendant in his main and pro se supplemental briefs that he wasdenied effective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147[1981]). Defendant has failed " 'to demonstrate the absence of strategic or other legitimateexplanations' for [defense] counsel's alleged shortcomings" (People v Benevento, 91NY2d 708, 712 [1998]). The sentence is not unduly harsh or severe. We have considereddefendant's remaining contentions and conclude that they are lacking in merit.Present—Scudder, P.J., Hurlbutt, Martoche, Green and Gorski, JJ.