| People v Cotton |
| 2014 NY Slip Op 06419 [120 AD3d 1564] |
| September 26, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMaurice Cotton, Appellant. |
Kevin J. Bauer, Albany, for defendant-appellant.
Maurice Cotton, defendant-appellant pro se.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered June 10, 2010. The judgment convicted defendant, upon a jury verdict, ofattempted murder in the second degree, assault in the first degree and criminal possessionof a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of attempted murder in the second degree (Penal Law§§ 110.00, 125.25 [1]), assault in the first degree(§ 120.10 [1]), and criminal possession of a weapon in the second degree(§ 265.03 [1] [b]). In his main brief, defendant contends that the verdict iscontrary to the weight of the evidence, primarily based upon his contention that thevictim was not credible, and he also asks us to review the legal sufficiency of theevidence as part of our weight of the evidence review. In his pro se supplemental brief,defendant contends that the evidence is legally insufficient to support the conviction.Defendant failed to renew his motion for a trial order of dismissal after presentingevidence, and thus failed to preserve his sufficiency challenge for our review (see People v Lane, 7 NY3d888, 889 [2006]; People v Hines, 97 NY2d 56, 61 [2001], rearg denied97 NY2d 678 [2001]). In any event, viewing the evidence in the light most favorableto the People (see People v Williams, 84 NY2d 925, 926 [1994]), we concludethat it is legally sufficient to support the conviction of the crimes charged (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Furthermore, viewing theevidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we also conclude that the verdict is not against the weightof the evidence (see generally Bleakley, 69 NY2d at 495). "[R]esolution of issuesof credibility, as well as the weight to be accorded to the evidence presented, areprimarily questions to be determined by the jury" (People v Witherspoon, 66 AD3d 1456, 1457 [2009], lvdenied 13 NY3d 942 [2010] [internal quotation marks omitted]; see People v Mulligan, 118AD3d 1372, 1375 [2014]), and, based upon our independent review of the evidenceand the credibility of the witnesses, we see no reason to disturb the jury'sdetermination.
We agree with defendant's further contention in his pro se supplemental brief that heshould not have been shackled when he testified before the grand jury, but we concludethat reversal based on that error is not warranted. "As the People correctly contend, theprosecutor's cautionary instructions to the grand jurors, which forbade them fromdrawing any negative inferences from the shackling, 'were sufficient to dispel anypotential prejudice' to defendant" (People v Burroughs, 108 AD3d 1103, 1106 [2013], lvdenied 22 NY3d 995 [2013]; see People v Gilmore, 12 AD3d 1155, 1155 [2004]).Insofar as defendant's pro se supplemental brief may be read to challenge the sufficiencyof the evidence before the grand jury, we note that such challenge is not properly beforeus. "It is well established that '[t]he validity of an order denying any motion [to dismissan indictment for legal insufficiency of the grand jury evidence] is not reviewable uponan appeal [*2]from an ensuing judgment of convictionbased upon legally sufficient trial evidence' " (People v Afrika, 79 AD3d1678, 1679 [2010], lv denied 17 NY3d 791 [2011], quoting CPL 210.30 [6];see People v Lane, 106AD3d 1478, 1481 [2013], lv denied 21 NY3d 1043 [2013]). Similarly,"[b]ecause his convictions are supported by legally sufficient trial evidence, defendant'schallenges to . . . the instructions given during [the grand jury] proceedingare precluded" (People vMedeiros, 116 AD3d 1096, 1099 n [2014]).
Also in his pro se supplemental brief, defendant contends that Supreme Courtcommitted reversible error in permitting two witnesses to bolster the victim's prioridentification of defendant. That contention is not preserved for our review because,"[a]lthough a [hearsay objection] was raised against this testimony, defendant at no timeobjected to this testimony on the specific ground that it constituted improper bolstering"(People v West, 56 NY2d 662, 663 [1982]; see People v Comerford, 70 AD3d 1305, 1306 [2010]; see also People v Jacque, 2AD3d 1362 [2003], lv denied 2 NY3d 741 [2004]). We decline to exerciseour power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
We reject defendant's further contention in his pro se supplemental brief that he wasdenied effective assistance of counsel, inasmuch as he failed to " 'demonstratethe absence of strategic or other legitimate explanations' for counsel's allegedly deficientconduct" (People v Caban,5 NY3d 143, 152 [2005]; see People v Coleman, 37 AD3d 489, 490 [2007], lvdenied 9 NY3d 864 [2007]; see generally People v Benevento, 91 NY2d 708,712 [1998]).
The sentence is not unduly harsh or severe. Finally, we have considered theremaining contentions in defendant's pro se supplemental brief and conclude that they arewithout merit. Present—Smith, J.P., Fahey, Lindley, Whalen and DeJoseph,JJ.