| People v Soler |
| 2012 NY Slip Op 07834 [100 AD3d 1554] |
| November 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Archangel L. Soler, Jr., Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), renderedMarch 16, 2011. The judgment convicted defendant, upon a jury verdict, of burglary in the thirddegree and grand larceny in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon a jury verdict, of burglaryin the third degree (Penal Law § 140.20) and grand larceny in the fourth degree (§155.30 [1]), defendant contends that the verdict is against the weight of the evidence. Althoughan acquittal would not have been unreasonable (see People v Danielson, 9 NY3d 342, 348 [2007]), we concludethat, viewing the evidence in light of the elements of the crimes as charged to the jury (seeid. at 349), the verdict is not against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]).
Defendant further contends that he was denied effective assistance of counsel becausedefense counsel did not facilitate defendant's request to appear before the grand jury. We rejectthat contention, inasmuch as "defendant failed to establish that he was prejudiced by the failureof his attorney to effectuate his appearance before the grand jury" (People v Simmons, 10 NY3d 946,949 [2008]; see also People vPonder, 42 AD3d 880, 881 [2007], lv denied 9 NY3d 925 [2007]). Indeed,defendant never informed County Court why he wished to testify, nor did he explain how histestimony would have affected the outcome of the grand jury proceedings. Instead, defendantstated that he wanted to prove that his constitutional rights had been violated, but he did notspecify which rights had been violated or how they had been violated. Thus, "there is no claimthat had [defendant] testified in the grand jury, the outcome would have been different"(Simmons, 10 NY3d at 949; seePeople v Rojas, 29 AD3d 405, 406 [2006], lv denied 7 NY3d 794 [2006]). Wealso note that defendant did not testify at trial (see People v Sutton, 43 AD3d 133, 136 [2007], affd 10NY3d 946 [2008]). Defendant's remaining contentions regarding defense counsel's allegedineffectiveness are without merit. Present—Centra, J.P., Peradotto, Sconiers, Valentinoand Martoche, JJ.