| People v Annis |
| 2015 NY Slip Op 02636 [126 AD3d 1525] |
| March 27, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vChristopher P. Annis, Appellant. |
Law Offices of Maurice J. Verrillo, P.C., Rochester (Maurice J. Verrillo of counsel),for defendant-appellant.
Eric R. Schiener, Special Prosecutor, Geneseo, for respondent.
Appeal from a judgment of the Allegany County Court (Thomas P. Brown, J.),rendered April 17, 2013. The judgment convicted defendant, upon a jury verdict, ofdriving while intoxicated, a class E felony, and aggravated unlicensed operation of amotor vehicle in the first 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 of,inter alia, felony driving while intoxicated (Vehicle and Traffic Law§§ 1192 [3]; 1193 [1] [c] [i]), defendant contends that the evidence islegally insufficient to establish that he was driving at the time of the accident. Defendantfailed to preserve that contention for our review inasmuch as he failed to renew hismotion for a trial order of dismissal after presenting evidence (see People vHines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). In anyevent, we conclude that defendant's contention is without merit.
"It is well settled that, even in circumstantial evidence cases, the standard forappellate review of legal sufficiency issues is whether any valid line of reasoning andpermissible inferences could lead a rational person to the conclusion reached by the[factfinder] on the basis of the evidence at trial, viewed in the light most favorable to thePeople" (People v Pichardo,34 AD3d 1223, 1224 [2006], lv denied 8 NY3d 926 [2007] [internalquotation marks omitted]; see People v Bleakley, 69 NY2d 490, 495 [1987]).Here, we conclude that "there is ample evidence in the record from which the jury couldhave reasonably concluded that defendant was indeed driving at the time of the accident"(People v Maricevic, 52AD3d 1043, 1044 [2008], lv denied 11 NY3d 790 [2008]). When the policearrived at the scene, they observed that the vehicle had flipped over and that the driver'sside window had been smashed. The police found defendant's wallet containing hisdriver's license on the ceiling above the driver's seat. The police observed only one set offootprints leading away from the vehicle, which they followed, and eventually locateddefendant. Defendant, who appeared to be intoxicated, admitted that he had beendrinking and that he was in the accident, but he denied that he was driving and refused toidentify the alleged driver. No other individuals were observed in the vicinity of theaccident. We further conclude that, viewing the evidence in light of the elements of thecrimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), theverdict is not against the weight of the evidence (see generally Bleakley, 69NY2d at 495). "The resolution of credibility issues by the jury and its determination ofthe weight to be given to the evidence are accorded great deference" (People vWallace, 306 AD2d 802, 802 [2003]; see Bleakley, 69 NY2d at 495; People v Lopez, 96 AD3d1621, 1622 [2012], lv denied 19 NY3d 998 [2012]), and there is no reasonto disturb that determination here (see People v Morrison, 48 AD3d 1044, 1045 [2008], lvdenied 10 NY3d 867 [2008]; People v Panek, 305 AD2d 1098, 1098 [2003],lv denied 100 NY2d 623 [2003]).
Defendant further contends that he was denied effective assistance of counselbecause, inter alia, defense counsel withdrew his request for a Martin hearing,failed to call a particular [*2]witness, and failed to speakto one of the People's witnesses before trial. To the extent that defendant's contention"involve[s] matters outside the record on appeal, . . . the proper proceduralvehicle for raising [that] contention[ ] is a motion pursuant to CPL 440.10" (People v Archie, 78 AD3d1560, 1562 [2010], lv denied 16 NY3d 856 [2011]). To the extent thatdefendant's contention is properly before us, we conclude that defendant receivedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147[1981]).
Defendant's contention that he was denied a fair trial by prosecutorial misconduct isnot preserved for our review (see People v Ross, 118 AD3d 1413, 1416-1417 [2014],lv denied 24 NY3d 964 [2014]), and we decline to exercise our power to reviewthat contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]). Finally, the sentence is not unduly harsh or severe. Present—Scudder,P.J., Centra, Peradotto, Carni and Sconiers, JJ.