| People v Huger |
| 2016 NY Slip Op 01200 [136 AD3d 943] |
| February 17, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kevin Huger, Appellant. |
Lynn W.L. Fahey, New York, NY (Mark W. Vorkink of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, KeithDolan, and Claibourne Henry of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Gary, J.), rendered September 28, 2012, convicting him of kidnapping in the seconddegree and menacing in the third degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconviction of kidnapping in the second degree is unpreserved for appellate review(see CPL 470.05 [2]; People v Carncross, 14 NY3d 319, 324-325 [2010]). In anyevent, viewing the evidence in the light most favorable to the prosecution (see Peoplev Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient toestablish the defendant's guilt of that crime beyond a reasonable doubt (see People v Burkhardt, 81AD3d 970, 971 [2011]; People v Salimi, 159 AD2d 658, 658-659[1990]).
Moreover, in fulfilling our responsibility to conduct an independent review of theweight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict finding the defendant guilty of kidnapping in the second degreewas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Although thejury acquitted the defendant on two of the charged counts, it was not required todisregard the testimony of the complainants in full, since a jury is free to "accept or rejectportions of the testimony presented to it" (People v Mazyck, 118 AD3d 728, 729 [2014] [internalquotation marks omitted]; seePeople v Martinez, 63 AD3d 859, 860 [2009]). According appropriate deferenceto the jury's assessment of the witnesses' credibility, we find that the jury's determinationnot to reject the complainants' testimony in its entirety was reasonable.
Contrary to the defendant's contention, his trial counsel was not ineffective due to hisfailure to object to a certain jury instruction given by the Supreme Court. The instructiongiven was not improper, and "[a] defendant is not denied effective assistance of trialcounsel merely because counsel does not make a motion or argument that has little or nochance of success" (People vStultz, 2 NY3d 277, 287 [2004]; see People v Naqvi, 132 AD3d 779, 780 [2015]).Moreover, when viewed as [*2]a whole, the recorddemonstrates that the defendant received meaningful representation (see People vBenevento, 91 NY2d 708, 712 [1998]).
The Supreme Court's Sandoval ruling (see People v Sandoval, 34NY2d 371 [1974]) was proper and did not deprive the defendant of a fair trial or his rightto testify on his own behalf. In making its ruling, the court engaged in the requisitebalancing of the probative value of each of the defendant's nine prior convictions againsttheir prejudicial effect and reached an appropriate compromise ruling that precludedinquiry into three of his convictions and, of the remaining six, permitting inquiry into theunderlying facts of only three (see People v Haugh, 84 AD3d 1401, 1401 [2011]; People v Seymour, 77 AD3d976, 979 [2010]). The defendant failed to meet his burden of demonstrating that theprejudicial effect of the evidence of his prior convictions so outweighed its probativevalue that exclusion was warranted (see People v Vetrano, 88 AD3d 750, 750 [2011];People v Seymour, 77 AD3d at 979). Dillon, J.P., Cohen, Maltese and Barros, JJ.,concur.