| People v Johnson |
| 2012 NY Slip Op 03344 [94 AD3d 1563] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AnthonyJohnson, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Susan C. Azzarelli of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), renderedDecember 3, 2008. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, ofcriminal possession of a weapon in the third degree (Penal Law § 265.02 [1]). Defendantcontends that, because the jury acquitted him of attempted robbery in the first degree(§§ 110.00, 160.15 [3]), the verdict with respect to the weapons offense necessarilyis repugnant and thus is against the weight of the evidence. We reject that contention. The crimeoccurred shortly before midnight outside a nightclub in Syracuse. The victim, a Chief WarrantOfficer in the United States Army, testified at trial that defendant approached him in the parkinglot and, after flashing what appeared to be a knife or gun in his jacket, said, "Give me money or Iwill kill you." The victim refused to comply with defendant's demand and in turn threatened toshoot defendant, who thereupon walked away. When defendant was stopped by the police shortlyafter being contacted by the victim, he was found to have a large knife in the pocket of his jacket.We conclude with respect to the weapons offense that, based on the victim's testimony, the jurycould have found that defendant used the knife "unlawfully against another" (§ 265.01[2]), i.e., to intimidate the victim, regardless of whether defendant ultimately intended to stab thevictim (see People v Durand, 188 AD2d 747, 747-748 [1992], lv denied 81 NY2d884 [1993]). At the same time, the jury could have reasonably found with respect to theattempted robbery charge of which defendant was acquitted that, given the reaction of the victim,defendant's attempt to steal money from him did not come " 'dangerously close' " to fruition (People v Lamagna, 30 AD3d1052, 1053 [2006], lv denied 7 NY3d 814 [2006]).
Defendant's further challenge to the weight of the evidence is based largely upon a challengeto the credibility of the victim, who did not know defendant and had no apparent motive forfalsely accusing him of a crime. Although defendant testified at trial that he never approached orspoke to the victim, the jury chose to credit the testimony of the victim over that of defendant,and there is no basis in the record for us to disturb the jury's credibility [*2]determinations (see People v Morgan, 77 AD3d 1419, 1420 [2010], lvdenied 15 NY3d 922 [2010]). Viewing the evidence in light of the elements of the crime ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Even assuming, arguendo, that a different verdict would not have been unreasonable, we cannotconclude that the jury failed to give the evidence the weight it should be accorded (see People v Kalen, 68 AD3d1666, 1666-1667 [2009], lv denied 14 NY3d 842 [2010]; see generallyBleakley, 69 NY2d at 495).
We also reject defendant's remaining contention that he was deprived of effective assistanceof counsel. Because, as noted, the verdict is not repugnant, defense counsel cannot be faulted forfailing to object to the verdict on that ground before the jury was discharged (see generallyPeople v Satloff, 56 NY2d 745, 746 [1982], rearg denied 57 NY2d 674 [1982]). It iswell settled that an attorney's "failure to 'make a motion or argument that has little or no chanceof success' " does not amount to ineffective assistance (People v Caban, 5 NY3d 143, 152 [2005]). Although defensecounsel erred in attempting to serve the People by fax with defendant's notice of intent to testifybefore the grand jury (see CPL 190.50 [5] [a]), that error alone does not render hisrepresentation ineffective. The "failure of defense counsel to facilitate defendant's testimonybefore the grand jury does not, per se, amount to the denial of effective assistance of counsel" (People v Simmons, 10 NY3d 946,949 [2008]). Here, as in Simmons, "defendant failed to establish that he was prejudicedby the failure of his attorney to effectuate his appearance before the grand jury" (id.).Present—Scudder, P.J., Centra, Lindley, Sconiers and Martoche, JJ.