| People v Thomas |
| 2011 NY Slip Op 09683 [90 AD3d 1080] |
| December 27, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v BokerThomas, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Shulamit RosenblumNemec, Gina Castellano, and Michael Berkovits of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice,J.), rendered February 23, 2010, convicting him of rape in the first degree (six counts), burglaryin the first degree (five counts), criminal sexual act in the first degree (five counts), robbery inthe first degree (three counts), burglary in the second degree (two counts), and robbery in thethird degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the People's contention, the defendant's claim that his due process and fair trialrights were violated by the failure of police to record his interrogation on video was sufficientlypreserved for appellate review (see CPL 470.05 [2]). However, the defendant's claim inthis regard is without merit (see Peoplev Cass, 79 AD3d 768, 769 [2010], lv granted 17 NY3d 793 [2011]; People v Rodriguez, 68 AD3d 789[2009]; People v Hodges, 58 AD3d642, 642 [2009]; People vBoyd, 21 AD3d 1428, 1429 [2005]; People v Falkenstein, 288 AD2d 922, 923[2001]).
The defendant's contention that the evidence was legally insufficient to establish his guilt ofburglary in the first degree and burglary in the second degree is unpreserved for appellate review(see CPL 470.05 [2]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that, contraryto the defendant's contention, it was legally sufficient to establish the defendant's guilt beyond areasonable doubt, with respect to the charges of burglary in the first degree and burglary in thesecond degree (see Penal Law §§ 140.25, 140.30; People v Romero, 78 AD3d 740,741 [2010]; People v Washington,26 AD3d 400, 400 [2006]). Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004],cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt with respect to thecounts of burglary in the first degree and burglary in the second degree was not against theweight [*2]of the evidence (see People v Romero, 7 NY3d 633 [2006]). The evidencedemonstrated, beyond a reasonable doubt, inter alia, that the defendant knowingly entered therespective buildings unlawfully.
The defendant's contention that he was deprived of the effective assistance of counsel basedon his attorney's failure to seek dismissal of the charges of burglary in the first degree andburglary in the second degree is without merit (see generally Strickland v Washington,466 US 668 [1984]; People v Henry, 95 NY2d 563, 565-566 [2000]). "A defendant is notdenied effective assistance of trial counsel merely because counsel does not make a motion orargument that has little or no chance of success" (People v Stultz, 2 NY3d 277, 287 [2004]; see People v Caban, 5 NY3d 143,152 [2005]). Skelos, J.P., Dickerson, Hall and Miller, JJ., concur.