| People v Tolliver |
| 2012 NY Slip Op 01882 [93 AD3d 1150] |
| March 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v John Tolliver,Appellant. |
—[*1] John Tolliver, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.),rendered May 4, 2010. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree and criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]) and criminal possession of aweapon in the second degree (§ 265.03 [3]). We reject the contention of defendant in hismain and pro se supplemental briefs that he was denied a fair trial based on the use of hisnicknames "Crim" and "Criminal" in the indictment. Supreme Court properly instructed the jurythat the indictment contained "simply . . . accusation[s]" and "was not in any wayevidence" of those accusations (see People v Johnson, 253 AD2d 702, 703-704 [1998],lv denied 92 NY2d 1034 [1998]). In addition, inasmuch as several of the People'switnesses knew defendant only by his nicknames, it was permissible for the People to elicittestimony regarding those nicknames at trial for identification purposes (see People v Hoffler, 41 AD3d891, 892 [2007], lv denied 9 NY3d 962 [2007]; People v Caver, 302 AD2d604 [2003], lv denied 99 NY2d 653 [2003]). Indeed, the court instructed the jury that theevidence concerning defendant's nicknames was "competent for one particular purpose only:[e]stablishing the identity of the [d]efendant." Defendant's further contention in his main and prose supplemental briefs that the prosecutor's use of the nicknames during summation constitutedmisconduct is not preserved for our review (see Caver, 302 AD2d 604). In any event, anyerror with respect to the prosecutor's use of the nicknames is harmless inasmuch as the evidenceof defendant's guilt was overwhelming and there was no significant probability that defendantwould have been acquitted but for the alleged error, especially in light of the court's instruction tothe jury (see id.; see generally People v Crimmins, 36 NY2d 230, 241-242[1975]). We reject defendant's contention in his main and pro se supplemental briefs that defensecounsel was ineffective in failing to object to comments made by the prosecutor duringsummation (see People v Lyon, 77AD3d 1338, 1339 [2010], lv denied 15 NY3d 954 [2010]).[*2]
Defendant's challenge to the legal sufficiency of theevidence corroborating the testimony of his accomplice, raised in his main and pro sesupplemental briefs, is unpreserved for our review because he did not raise the issue ofaccomplice corroboration in his general motion for a trial order of dismissal (see People vGray, 86 NY2d 10, 19 [1995]). In any event, defendant's challenge is without merit (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). We reject defendant's contention inhis main brief that he was denied effective assistance of counsel based on the failure of defensecounsel to move for a trial order of dismissal on that ground (see generally People vBaldi, 54 NY2d 137, 147 [1981]). "Defendant has not shown that [such a] motion, if made,would have been successful and thus has failed to establish that defense counsel was ineffectivein failing to make such a motion" (People v Borcyk, 60 AD3d 1489, 1490 [2009], lv denied 12NY3d 923 [2009]). Viewing the evidence in light of the elements of the crimes as charged to thejury (see People v Danielson, 9NY3d 342, 349 [2007]), we accord great deference to the jury's resolution of credibilityissues and conclude that the verdict is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495).
By failing to object to the court's ultimate Sandoval ruling, defendant failed topreserve for our review his further contention in his main brief that the ruling constitutes anabuse of discretion (see People vBrown, 39 AD3d 1207 [2007], lv denied 9 NY3d 921 [2007]; People v Alston, 27 AD3d 1141[2006], lv denied 6 NY3d 892 [2006]). In any event, the court's Sandoval rulingdid not constitute a " 'clear abuse of discretion' " warranting reversal (People v Nichols,302 AD2d 953, 953 [2003], lv denied 99 NY2d 657 [2003]; see People v Reid, 34 AD3d 1273[2006], lv denied 8 NY3d 884 [2007]). The prior convictions in question were relevant tothe credibility of defendant (see Peoplev Marquez, 22 AD3d 388, 391 [2005], lv denied 6 NY3d 778 [2006]). Finally,the sentence is not unduly harsh or severe. Present—Centra, J.P., Fahey, Peradotto, Carniand Martoche, JJ.