| People v Heary |
| 2013 NY Slip Op 01689 [104 AD3d 1208] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vRichard Heary, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered June 21, 2011. The judgment convicted defendant, upon a nonjury verdict,of manslaughter in the first degree and criminal possession of a weapon in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a nonjury trialof manslaughter in the first degree (Penal Law § 125.20 [1]) and criminalpossession of a weapon in the second degree (§ 265.03 [3]), defendant contendsthat the evidence is legally insufficient to support his conviction of manslaughter becausethe People failed to meet their burden of disproving his justification defense beyond areasonable doubt (see generally § 25.00 [1]; People v Steele, 26NY2d 526, 528 [1970]). That contention is not preserved for our review inasmuch asdefendant "did not move for a trial order of dismissal on that ground" (People v Smalls, 70 AD3d1328, 1330 [2010], lv denied 14 NY3d 844 [2010], reconsiderationdenied 15 NY3d 778 [2010]; see generally People v Hawkins, 11 NY3d 484, 492[2008]; People v Gray, 86 NY2d 10, 19 [1995]). Defendant further contends thathis conviction of manslaughter is not based on legally sufficient evidence because thePeople failed to establish that he intended to cause serious physical injury to the victim(see § 125.20 [1]). Inasmuch as defendant did not renew his motion todismiss after he presented evidence, he failed to preserve that contention for our review(see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678[2001]; see also People vKolupa, 13 NY3d 786, 787 [2009]; People v Lane, 7 NY3d 888, 889 [2006]). Defendantacknowledges that he did not preserve for our review his challenges to the legalsufficiency of the evidence, but he additionally contends that he was denied effectiveassistance of counsel because defense counsel failed to preserve those challenges for ourreview. That contention lacks merit. It is well settled that "[a] defendant is not deniedeffective assistance of trial counsel merely because counsel does not make a motion orargument that has little or no chance of success" (People v Stultz, 2 NY3d 277, 287 [2004], reargdenied 3 NY3d 702 [2004]; see People v Harris, 97 AD3d 1111, 1111-1112 [2012],lv denied 19 NY3d 1026 [2012]). Here, there was no chance that such a motionwould have succeeded.
In the alternative, defendant contends that the verdict on the manslaughter count isagainst the weight of the evidence. We reject that contention. With respect to thejustification [*2]defense, it cannot be said that SupremeCourt failed to give the evidence the weight it should be accorded in determining that"the victim did not brandish [a gun] during the altercation and that defendant's use ofdeadly force was not justified" (People v Massey, 61 AD3d 1433, 1433 [2009], lvdenied 13 NY3d 746 [2009]; see Penal Law § 35.15 [2] [a]; see e.g. People v Butera, 23AD3d 1066, 1068 [2005], lv denied 6 NY3d 774 [2006], lv denied 6NY3d 832 [2006]; People vWolf, 16 AD3d 1167, 1168 [2005]). Viewing the evidence in light of theelements of that crime in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not otherwise against the weight of the evidence (seePeople v Bleakley, 69 NY2d 490, 495 [1987]).
We reject defendant's further contention that the court erred in refusing to suppresshis statement to the police. "[T]he record of the suppression hearing supports the court'sdetermination that the statements were not coerced, i.e., defendant received no promisesin exchange for making the statements nor was he threatened in any way, and the court'sdetermination is entitled to great deference" (People v Peay, 77 AD3d 1309, 1310 [2010], lvdenied 15 NY3d 955 [2010]; see People v McAvoy, 70 AD3d 1467, 1467 [2010], lvdenied 14 NY3d 890 [2010]; see generally People v Prochilo, 41 NY2d 759,761 [1977]). Finally, the sentence is not unduly harsh or severe. Present—Scudder,P.J., Centra, Lindley, Sconiers and Martoche, JJ.