| People v Medley |
| 2015 NY Slip Op 07086 [132 AD3d 1255] |
| October 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jessie Medley, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Daniel J. Punch of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.),rendered June 11, 2013. The judgment convicted defendant, upon a jury verdict, ofrobbery in the first degree and criminal possession of a weapon in the third 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 robbery in the first degree (Penal Law § 160.15 [3]), and criminalpossession of a weapon in the third degree (§ 265.02 [1]). Viewing theevidence in the light most favorable to the People, as we must (see People vWilliams, 84 NY2d 925, 926 [1994]; People v Contes, 60 NY2d 620, 621[1983]), we conclude that the evidence is legally sufficient to support the conviction(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Although therewere some inconsistencies in the victim's testimony, she was steadfast in her account thatdefendant robbed her while he had a knife in his hand and threatened to stab her, and thejury was entitled to credit that testimony (see People v Kelly, 34 AD3d 1341, 1342 [2006], lvdenied 8 NY3d 847 [2007]). In addition, a surveillance video admitted in evidencedepicts the victim backing away from defendant's outstretched hand, and a witness whoresponded to the victim's plea for help testified that defendant had something in his handand that the victim screamed that defendant had tried to stab her. Viewing the evidencein light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we likewise conclude that, although an acquittal would nothave been unreasonable, the verdict is not against the weight of the evidence (seeBleakley, 69 NY2d at 495). We note that "[r]esolution of issues of credibility, as wellas the weight to be accorded to the evidence presented, are primarily questions to bedetermined by the jury" (Peoplev Witherspoon, 66 AD3d 1456, 1457 [2009], lv denied 13 NY3d 942[2010] [internal quotation marks omitted]), and we perceive no reason to disturb thejury's resolution of those issues in this case.
Although County Court initially overruled defendant's objection to certain portionsof the hearsay testimony from the driver of the bus from which defendant wasapprehended, it thereafter gave the jury a prompt curative instruction to "disregard whatsomebody else told him[;] [t]hat's not evidence." Defendant did not object to thatinstruction, nor did he object further or seek a mistrial, and he thus failed to preserve forour review his further contention that introduction of the testimony deprived him of hisright to confront the bus driver or his right to a fair trial (see People v Kello, 96NY2d 740, 744 [2001]). Under the circumstances, the court's "instruction[ ] must bedeemed to have corrected the error to the defendant's satisfaction" (People vHeide, 84 NY2d 943, 944 [1994]; People v Lane, 106 AD3d 1478, 1480-1481 [2013], lvdenied 21 NY3d 1043 [2013]). Defendant also contends that the court erred inadmitting alleged hearsay during the testimony of two police witnesses. We reject thatcontention and conclude that, "[e]ven assuming that this testimony conveyed an implicitassertion by a nontestifying declarant, it was not received for its truth, but as backgroundevidence to complete the narrative of events and explain why the officer[s] looked in the[back of the bus]" (People vNewland, 6 AD3d 330, 330 [2004], lv denied 3 NY3d 679 [2004],[*2]reconsideration denied 3 NY3d 759 [2004]).Defendant failed to preserve for our review his remaining contentions concerning hisright of confrontation and his right to a fair trial (see People v Irvin, 111 AD3d 1294, 1295 [2013], lvdenied 24 NY3d 1044 [2014]). We decline to exercise our power to review thosecontentions as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]).
Finally, we reject defendant's remaining contention that he was denied effectiveassistance of counsel owing to counsel's failure to raise certain arguments or make acertain motion inasmuch as such arguments and motion had little or no chance of success(see People v Caban, 5NY3d 143, 152 [2005]). We conclude that defendant received meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).Present—Scudder, P.J., Peradotto, Carni, Valentino and Whalen, JJ.