| People v Roberts |
| 2013 NY Slip Op 07325 [111 AD3d 1308] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DeyonT. Roberts, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.),rendered March 4, 2011. 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]). Defendantfailed to preserve for our review his contention that the evidence is legally insufficient tosupport the conviction because his motion to dismiss was not specifically directed at theground advanced on appeal (see People v Gray, 86 NY2d 10, 19 [1995]; People v Ange, 37 AD3d1143, 1144 [2007], lv denied 9 NY3d 839 [2007]). Viewing the evidence inlight of the elements of the crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We notein particular that the jury's credibility determinations are entitled to great deference "'because those who see and hear the witnesses can assess their credibility and reliabilityin a manner that is far superior to that of reviewing judges who must rely on the printedrecord' " (see Ange, 37 AD3d at 1144, quoting People v Lane, 7 NY3d888, 890 [2006]).
We reject defendant's further contention that he did not receive effective assistanceof counsel. Rather, we conclude that "the defense reflect[ed] a reasonable and legitimatestrategy under the circumstances and evidence presented," and thus it did "not fall to thelevel of ineffective assistance" (People v Benevento, 91 NY2d 708, 712-713[1998]; see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Finally, we reject defendant's contention that County Court erred in adjudicating hima persistent violent felony offender pursuant to CPL 400.16. Prior to his convictionherein for a class C violent felony offense (see Penal Law § 70.02 [1] [b]),defendant was convicted of two violent felony offenses, i.e., attempted robbery in thefirst degree in 1998 and attempted burglary in the first degree in 2002. Defendant isprecluded from challenging the constitutionality of the 1998 conviction because he failedto challenge the constitutionality of that conviction in the 2002 [*2]proceedings (see People v Wilson, 231 AD2d 912,913 [1996], lv denied 89 NY2d 868 [1996]). We have examined defendant'sremaining contention and conclude that it lacks merit. Present—Smith, J.P.,Peradotto, Carni, Valentino and Whalen, JJ.