| People v Joslyn |
| 2013 NY Slip Op 00859 [103 AD3d 1254] |
| February 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JerryJoslyn, Sr., Appellant. |
—[*1] Jason L. Cook, District Attorney, Penn Yan (Patrick T. Chamberlain of counsel), forrespondent.
Appeal from a judgment of the Yates County Court (W. Patrick Falvey, J.), renderedNovember 9, 2010. The judgment convicted defendant, upon a jury verdict, of grandlarceny in the fourth degree and falsely reporting an incident 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 upon a juryverdict of grand larceny in the fourth degree (Penal Law § 155.30 [7]), for tradinga rifle that had been placed in his possession for safe keeping, and falsely reporting anincident in the third degree (§ 240.50 [3] [a]), for falsely reporting a burglary tocover up the larceny. Defendant contends that the evidence is legally insufficient tosupport his conviction inasmuch as his testimony that he was on pain medication thatcaused memory loss and confusion demonstrated that he lacked the requisite intent tocommit the charged crimes. Defendant failed to preserve that contention for our review(see People v Gray, 86 NY2d 10, 19 [1995]), and in any event his contentionlacks merit. "[V]iewing the evidence in the light most favorable to the prosecution"(People v Contes, 60 NY2d 620, 621 [1983]), we conclude that a rational jurycould have found that, despite defendant's alleged intoxication, defendant intended to "'deprive [the victim] of [his rifle] or to appropriate the same' " (People vJennings, 69 NY2d 103, 118 [1986], quoting § 155.05 [1]; see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]) and knowingly made a false report(see generally § 240.50). Additionally, although a different result wouldnot have been unreasonable (seePeople v Danielson, 9 NY3d 342, 348 [2007]), we conclude that, viewing theevidence in light of the element of intent as charged to the jury (see id. at 349),the verdict with respect to that element is not against the weight of the evidence (seegenerally Bleakley, 69 NY2d at 495).
Defendant further contends that County Court erred in granting the prosecutor'smotion in limine seeking to preclude defense counsel from impeaching the People'switnesses upon cross-examination with certain prior arrests and traffic infractions.Defense counsel, however, waived that contention when he confirmed that he had noobjection to the court's ruling (see generally People v Graham, 292 AD2d 824,824 [2002], lv denied 98 NY2d 697 [2002]). With respect to defendant'scontention that the prosecutor's cross-examination of him exceeded the scope of directexamination, we note that, "in a criminal case, a party may prove through cross-[*2]examination any relevant proposition, regardless of thescope of direct examination" (People v Sanders, 2 AD3d 1420, 1420-1421 [2003][internal quotation marks omitted]).
Finally, we reject defendant's contention that he was denied effective assistance ofcounsel. Although defendant contends that defense counsel was ineffective because hedid not oppose the prosecutor's in limine motion, " '[a] defendant is not denied effectiveassistance of trial counsel merely because counsel does not make a motion or argumentthat has little or no chance of success' " (People v Harris, 97 AD3d 1111, 1111-1112 [2012], lvdenied 19 NY3d 1026 [2012], quoting People v Stultz, 2 NY3d 277, 287 [2004], rearg denied3 NY3d 702 [2004]). Additionally, " 'it is incumbent on defendant to demonstratethe absence of strategic or other legitimate explanations' for [defense] counsel's allegedshortcomings" (People v Benevento, 91 NY2d 708, 712 [1998], quotingPeople v Rivera, 71 NY2d 705, 709 [1988]), and here defendant failed to meetthat burden (see People vRogers, 70 AD3d 1340, 1340 [2010], lv denied 14 NY3d 892 [2010],cert denied 562 US —, 131 S Ct 475 [2010]). Instead, "the evidence, thelaw, and the circumstances of [this] case, viewed in totality and as of the time ofrepresentation, reveal that [defense counsel] provided meaningful representation"(People v Baldi, 54 NY2d 137, 147 [1981]). Present—Smith, J.P.,Peradotto, Carni, Sconiers and Whalen, JJ.