| People v McCoy |
| 2012 NY Slip Op 07484 [100 AD3d 1422] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RonaldMcCoy, Appellant. |
—[*1] Ronald McCoy, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo(Nicholas T. Texido of counsel), for respondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered July 7,2010. The judgment convicted defendant, upon a nonjury verdict, of burglary in the seconddegree, robbery in the second degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence imposed for criminal possession of a weapon in the third degree underthe third count of the indictment and as modified the judgment is affirmed, and the matter isremitted to Erie County Court for resentencing on that count of the indictment.
Memorandum: Defendant appeals from a judgment convicting him following a nonjury trialof burglary in the second degree (Penal Law § 140.25 [1] [d]), robbery in the seconddegree (§ 160.10 [2] [b]), and criminal possession of a weapon in the third degree (§265.02 [1]). Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). "In a bench trial, no lessthan a jury trial, the resolution of credibility issues by the trier of fact and its determination of theweight to be accorded the evidence presented are entitled to great deference" (People v VanAkin, 197 AD2d 845, 845 [1993]). County Court was entitled to reject defendant's version ofthe events "and, upon our review of the record, we cannot say that the court failed to give theevidence the weight that it should be accorded" (People v Britt, 298 AD2d 984, 984[2002], lv denied 99 NY2d 556 [2002]).
Defendant's contention in his main and pro se supplemental briefs regarding the legalsufficiency of the evidence before the grand jury is not properly before us. "Having failed tochallenge the [legal] sufficiency of the trial evidence, defendant may not now challenge the[legal] sufficiency of the evidence before the grand jury" (People v Wimberly, 86 AD3d 806, 807 [2011], lv denied18 NY3d 863 [2011]; see People vSmith, 4 NY3d 806, 808 [2005]; see also CPL 210.30 [6]). Additionally, byaffirmatively requesting that the court charge criminal possession of a weapon in the third degreeas a lesser included offense of criminal possession of a weapon in the second degree, defendantwaived the contention in his main brief that the court erred in doing so (see [*2]People v Richardson, 88 NY2d 1049, 1051 [1996]; People v Carter, 38 AD3d 1291,1292 [2007]).
We reject defendant's contention in his main brief that the five-year period of postreleasesupervision imposed by the court for the robbery and burglary conviction renders his sentenceunduly harsh and severe. As the People correctly concede, however, the determinate sentence andperiod of postrelease supervision imposed by the court for the conviction of criminal possessionof a weapon in the third degree (Penal Law § 265.02 [1]), a nonviolent class D felony, isillegal (see §§ 70.45 [1]; 70.06 [3] [d]; [4] [b]; People v Winfield, 83 AD3d 745,746 [2011]). We therefore modify the judgment by vacating the sentence imposed for thatconviction, and we remit the matter to County Court for resentencing on count three of theindictment. Present—Fahey, J.P., Peradotto, Carni, Whalen and Martoche, JJ.