| People v Cole |
| 2013 NY Slip Op 07317 [111 AD3d 1301] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JohnCole, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), renderedOctober 11, 2011. The judgment convicted defendant, after a nonjury trial, of robbery inthe third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, after a nonjurytrial, of robbery in the third degree (Penal Law § 160.05). Defendant failed topreserve for our review his challenge to the legal sufficiency of the evidence (seePeople v Gray, 86 NY2d 10, 19 [1995]). In any event, we conclude that theconviction is supported by legally sufficient evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Furthermore, viewing the evidence in light ofthe elements of the crime in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495). Where, as here, the defendant's challenge is focusedupon the credibility of the witnesses, we accord "great deference to the resolution ofcredibility issues by the trier of fact because those who see and hear the witnesses canassess their credibility and reliability in a manner that is far superior to that of reviewingjudges who must rely on the printed record" (People v Vanlare, 77 AD3d 1313, 1315 [2010], lvdenied 15 NY3d 956 [2010] [internal quotation marks omitted]). Consequently,although a different verdict would not have been unreasonable based on all of thecredible evidence (see Danielson, 9 NY3d at 348; Bleakley, 69 NY2d at495), County Court specifically credited the victim's testimony, and we see no basis todisturb that determination.
Additionally, inasmuch as defendant's challenge to the legal sufficiency of theevidence is without merit, there is also no merit to his further contention that he wasdenied effective assistance of counsel because defense counsel failed to preserve thatchallenge for our review (seePeople v Stephenson, 104 AD3d 1277, 1279 [2013], lv denied 21 NY3d1020 [2013]; People vPerez, 89 AD3d 1393, 1394 [2011], lv denied 18 NY3d 961 [2012]).Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Smith,Fahey, Sconiers and Valentino, JJ.