| People v Mohamed |
| 2012 NY Slip Op 03041 [94 AD3d 1462] |
| April 20, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Mohamed A.Mohamed, Appellant. |
—[*1]
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.),rendered March 28, 2011. The judgment convicted defendant, upon a jury verdict, of assault inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury verdict of assaultin the second degree (Penal Law § 120.05 [2]), defendant contends that the conviction isnot supported by legally sufficient evidence. As defendant correctly concedes, his challenge tothe legal sufficiency of the evidence is not preserved for our review because he failed to renewhis motion for a trial order of dismissal at the close of his proof (see People v Hines, 97NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). In any event, his contentionlacks merit.
Defendant does not dispute that the victim sustained physical injuries after he was assaultedwith a blunt object by two men. Defendant also does not dispute that one of the two assailantswas his brother. The only issue at trial was the identity of the second assailant. The victim wasunable to identify the second assailant, testifying on the issue of identity only that the twoassailants spoke to each other in Arabic. The prosecution, however, offered the testimony of anaccomplice, defendant's former girlfriend. She testified that, earlier on the night of the assault,defendant and his brother had been involved in a bar fight with the victim and friends of thevictim, following which defendant's brother sustained injuries. The accomplice testified that sheleft the bar with defendant and his brother. The two men asked her to invite the victim, withwhom she was familiar, to her house. Once the victim arrived, defendant and his brotherassaulted the victim.
Contrary to defendant's contention, the accomplice's testimony was sufficiently corroborated." '[C]orroborative evidence need not show the commission of the crime; it need not show thatdefendant was connected with the commission of the crime. It is enough if it tends to connect thedefendant with the commission of the crime in such a way as may reasonably satisfy the jury thatthe accomplice is telling the truth' " (People v Reome, 15 NY3d 188, 191-192 [2010]). Numerousprosecution witnesses testified concerning the bar fight between the two groups [*2]of men. In addition, the accomplice's cousin testified that she sawthe accomplice leave the bar with defendant and his brother shortly before the assault occurred.Telephone records establish that the accomplice contacted the victim several times shortly beforethe assault occurred. We thus conclude that there was sufficient evidence " 'to connect thedefendant with the commission of the crime' " (id. at 192).
We likewise reject defendant's contention that the verdict is against the weight of theevidence. Any inconsistencies in the testimony did not render the accomplice's testimony"incredible and unbelievable, that is, impossible of belief because it [was] manifestly untrue,physically impossible, contrary to experience, or self-contradictory" (People v Wallace,306 AD2d 802, 802-803 [2003] [internal quotation marks omitted]; see People v Young, 55 AD3d1234, 1235-1236 [2008], lv denied 11 NY3d 901 [2008]). Furthermore, "[w]here, ashere, witness credibility is of paramount importance to the determination of guilt or innocence,the appellate court must give '[g]reat deference . . . [to the jury's] opportunity toview the witnesses, hear the testimony and observe demeanor' " (People v Harris, 15 AD3d 966,967 [2005], lv denied 4 NY3d 831 [2005], quoting People v Bleakley, 69 NY2d490, 495 [1987]; see People vKilbury, 83 AD3d 1579, 1580 [2011], lv denied 17 NY3d 860 [2011]).
The entire case rested on whether the jury credited the testimony of the accomplice and hercousin, which placed defendant with his brother at all relevant times that evening. "[A]lthough afinding that defendant was not the [second assailant] would not have been unreasonable given thelack of physical evidence and the questionable reliability of the [accomplice] who implicateddefendant, it cannot be said that the jury failed to give the evidence the weight it should beaccorded" (People v McMillon, 77AD3d 1375, 1376 [2010], lv denied 16 NY3d 897 [2011]).
Viewing the evidence, the law and the circumstances of this case, in totality and as of thetime of the representation, we reject defendant's contention that he was denied effectiveassistance of counsel (see generally People v Flores, 84 NY2d 184, 187 [1994];People v Baldi, 54 NY2d 137, 147 [1981]), and we further conclude that the sentence isnot unduly harsh or severe. Present—Scudder, P.J., Centra, Lindley, Sconiers andMartoche, JJ.