| People v Briggs |
| 2015 NY Slip Op 00066 [124 AD3d 1320] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRoy Briggs, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered June 17, 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 unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofburglary in the second degree (Penal Law § 140.25 [2]), defendant contendsthat Supreme Court erred in refusing to suppress a statement he made to the policebecause he invoked his right to counsel before the statement was made and because thestatement was obtained through threats and coercion. We reject that contention. Thepolice officer who questioned defendant testified that defendant waived hisMiranda rights and agreed to speak with him; he did not recall defendantrequesting an attorney; and he did not threaten or coerce defendant. The court did notcredit defendant's testimony to the contrary at the suppression hearing. We accord greatweight to the determination of the suppression court " 'because of its ability toobserve and assess the credibility of the witnesses,' " and we perceive no basis todisturb its determination (People v McConnell, 233 AD2d 867, 867 [1996], lvdenied 89 NY2d 987 [1997]; see People v Mateo, 2 NY3d 383, 414 [2004],cert denied 542 US 946 [2004]; People v Coleman, 306 AD2d 941, 941[2003], lv denied 1 NY3d 596 [2004]).
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). We likewise reject defendant's further contention that he was denied effectiveassistance of counsel. Defendant failed to demonstrate the absence of a strategic or otherlegitimate explanation for defense counsel's failure to object to certain evidence (see People v Dombrowski, 94AD3d 1416, 1417 [2012], lv denied 19 NY3d 959 [2012]; see generallyPeople v Benevento, 91 NY2d 708, 712-713 [1998]), and defense counsel's failure tomove for a mistrial does not constitute ineffective assistance because the motion wouldhave had little to no chance of success (see People v Stultz, 2 NY3d 277, 287 [2004], reargdenied 3 NY3d 702 [2004]). Finally, the sentence is not unduly harsh or severe.Present—Scudder, P.J., Centra, Fahey, Lindley and DeJoseph, JJ.