| People v Jackson |
| 2015 NY Slip Op 07133 [132 AD3d 1304] |
| October 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Samuel L. Jackson, Jr., Appellant. |
Eftihia Bourtis, Rochester, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered July 28, 2010. The judgment convicted defendant, upon a jury verdict, ofrobbery 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 robbery in the second degree (Penal Law § 160.10 [2] [b]),arising from an incident in which he refused to pay a prostitute the agreed-upon price fora sex act and then stole money from her by threatening her with what appeared to be ahandgun, but was established to be a pellet gun. We reject defendant's contention that theverdict is against the weight of the evidence based on, inter alia, the complainant's lack ofcredibility. We agree with defendant that, "based on all the credible evidence a differentfinding would not have been unreasonable" (People v Bleakley, 69 NY2d 490,495 [1987]). Viewing the evidence in light of the elements of the crime as charged to thejury (see People vDanielson, 9 NY3d 342, 349 [2007]), however, we conclude that the jury didnot fail to give the evidence the weight it should be accorded. " '[R]esolution ofissues of credibility, as well as the weight to be accorded to the evidence presented, areprimarily questions to be determined by the jury' " (People v West, 118 AD3d1450, 1451-1452 [2014], lv denied 24 NY3d 1048 [2014]), and we see noreason to disturb the jury's determination of those issues in this case.
We reject defendant's further contention that he was denied effective assistance ofcounsel. Insofar as defendant's contention is based on his trial attorney's failure to file aspeedy trial motion, that contention is without merit. The record establishes that thePeople declared their readiness for trial within five months of the commencement of theproceeding, and there is no indication of any additional time that is chargeable to thePeople. Thus, any CPL 30.30 motion would have been without merit (see CPL30.30 [1] [a]), and defendant was not "denied effective assistance of trial counsel merelybecause counsel [did] not make a motion or argument that [had] little or no chance ofsuccess" (People v Joslyn,103 AD3d 1254, 1256 [2013], lv denied 21 NY3d 944 [2013] [internalquotation marks omitted]; seePeople v Barksdale, 129 AD3d 1497, 1498 [2015]). With respect to defendant'scontention that his attorney was ineffective in failing to seek immunity for a prosecutionwitness, we note that, " '[p]ursuant to CPL 50.30, the trial court may conferimmunity to witnesses in a criminal proceeding only when expressly requested to do soby the District Attorney' " (People v Bolling, 24 AD3d 1195, 1196 [2005], affd7 NY3d 874 [2006]). Here, the prosecutor made no such request, and defendant'scontention lacks merit insofar as defendant contends that defense counsel should have"demanded" that the prosecutor make such a request. In order "[t]o prevail on a claim ofineffective assistance of counsel, it is incumbent on defendant to demonstrate the absenceof strategic or other legitimate explanations" for defense counsel's allegedly deficientconduct (People v Rivera, 71 NY2d 705, 709 [1988]; see People vBenevento, 91 NY2d 708, 712 [1998]), and defendant failed to meet that burdenhere (see People v Holland,126 AD3d 1514, 1515 [2015], lv denied 25 NY3d 1165 [2015]; People v Torres, 125 AD3d1481, 1482-1483 [2015], lv denied 25 NY3d 1172 [2015]). Based upon ourexamination of the entire record, we conclude that "the evidence, [*2]the law, and the circumstances of [the] case, viewed intotality and as of the time of the representation, reveal that the attorney providedmeaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]).
The sentence is not unduly harsh or severe. Present—Scudder, P.J., Smith,Carni, Lindley and DeJoseph, JJ.