| People v Wilson |
| 2013 NY Slip Op 01733 [104 AD3d 1231] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v NjeraA. Wilson, Appellant. |
—[*1] Njera A. Wilson, defendant-appellant pro se. Frank A. Sedita, III, District Attorney,Buffalo (Matthew B. Powers of counsel), for respondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.),rendered November 23, 2010. The judgment convicted defendant, upon a jury verdict, ofburglary in the second 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 burglary in the second degree (Penal Law § 140.25 [2]). The generalmotion by defendant for a trial order of dismissal is insufficient to preserve for ourreview his contention that the verdict is not supported by legally sufficient evidence(see People v Gray, 86 NY2d 10, 19 [1995]). In any event, we reject defendant'scontention. Viewing the evidence in the light most favorable to the People (seePeople v Contes, 60 NY2d 620, 621 [1983]), we conclude that there is a valid line ofreasoning and permissible inferences to support the jury's finding that defendantcommitted the crime of which he was convicted based upon the evidence at trial (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). We therefore furtherconclude that defendant was not denied effective assistance of counsel based on defensecounsel's failure to move for a trial order of dismissal on more specific grounds. It is wellsettled that " '[a] defendant is not denied effective assistance of trial counsel [wheredefense] counsel does not make a motion or argument that has little or no chance ofsuccess' " (People v March,89 AD3d 1496, 1497 [2011], lv denied 18 NY3d 926 [2012], quoting People v Stultz, 2 NY3d277, 287 [2004], rearg denied 3 NY3d 702 [2004]).
Defendant further contends that the verdict is against the weight of the evidencebecause the testimony of the victim was not credible. The credibility issues identified bydefendant on appeal were placed before the jury, and "[w]e accord great deference to the[jury's] resolution of [those] credibility issues . . . 'because those who seeand hear the witnesses can assess their credibility and reliability in a manner that is farsuperior to that of reviewing judges who must rely on the printed record' " (People v Ange, 37 AD3d1143, 1144 [2007], lv denied 9 NY3d 839 [2007], quoting People v Lane, 7 NY3d888, 890 [2006]). Viewing the evidence in light of the elements of the crime ascharged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we conclude that the [*2]verdict is not against the weight of the evidence (seegenerally Bleakley, 69 NY2d at 495).
Contrary to defendant's contention, the showup identification procedure was notunduly suggestive, and County Court properly permitted the in-court identification ofdefendant. Although showup procedures are generally disfavored (see People vOrtiz, 90 NY2d 533, 537 [1997]), "such procedures are permitted 'where [they are]reasonable under the circumstances—that is, when conducted in close geographicand temporal proximity to the crime—and the procedure used was not undulysuggestive' " (People vWoodard, 83 AD3d 1440, 1441 [2011], lv denied 17 NY3d 803 [2011],quoting People v Brisco, 99 NY2d 596, 597 [2003]). Here, defendant wasapprehended one block from the scene of the crime and within minutes of its occurrence.Also contrary to defendant's contention, the showup procedure was not rendered undulysuggestive by the fact that defendant was handcuffed and in a patrol car when he wasreturned to the scene of the crime (see People v Duuvon, 77 NY2d 541, 545[1991]; People v Santiago,83 AD3d 1471, 1471 [2011], lv denied 17 NY3d 800 [2011]; People v Stoneham, 50 AD3d1575, 1576 [2008], lv denied 10 NY3d 940 [2008]).
By failing to object to the court's ultimate Sandoval ruling, defendant failedto preserve for our review his present challenge to that ruling (see People v Miller, 59 AD3d1124, 1125 [2009], lv denied 12 NY3d 819 [2009]; People v Caito, 23 AD3d1135, 1136 [2005]). In any event, that contention is without merit (see generallyPeople v Hayes, 97 NY2d 203, 207-208 [2002]).
Finally, the contentions of defendant in his pro se supplemental brief do not warrantreversal or modification of the judgment. Specifically, the prosecutor's comments duringsummation were "either a fair response to defense counsel's summation or fair commenton the evidence" (People vMcEathron, 86 AD3d 915, 916 [2011] [internal quotation marks omitted], lvdenied 19 NY3d 975 [2012]). Similarly, the court's Allen charge and itsinstructions on interested witnesses and the failure to testify were proper (see Peoplev Alvarez, 86 NY2d 761, 763 [1995]; see generally People v Bell, 38 NY2d116, 120 [1975]). We therefore also conclude that defendant's ineffective assistancecontention as it relates to defense counsel's failure to object to those comments andcharges is without merit (see Stultz, 2 NY3d at 287). Present—Smith, J.P.,Fahey, Sconiers, Valentino and Whalen, JJ.