| People v Moss |
| 2016 NY Slip Op 02668 [138 AD3d 761] |
| April 6, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Moss, Appellant. |
Mark Diamond, New York, NY, for appellant, and appellant pro se.
Madeline Singas, District Attorney, Mineola, NY (Judith R. Sternberg and DonaldBerk of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Berkowitz, J.), rendered February 24, 2014, convicting him of burglary in the seconddegree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention, raised in his main brief, that the evidence was legallyinsufficient to establish his guilt is unpreserved for appellate review (see CPL470.05 [2]; People vHawkins, 11 NY3d 484, 492 [2008]). In any event, viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621[1983]), we find that it was legally sufficient to establish his guilt beyond a reasonabledoubt. The evidence of the defendant's identity as the perpetrator of the subjectburglaries, which included DNA evidence, although circumstantial and lacking in anypositive identification by the complainants, established a prima facie case as to identity(see People v Guzman, 116AD3d 790, 791 [2014]; People v Dolan, 2 AD3d 745, 746 [2003]). Contrary to thedefendant's contention, the transcription errors contained in the reports of the People'sexpert regarding, among other things, the date of DNA testing of samples extracted fromitems found at the crime scenes, did not render the expert's testimony unreliable as amatter of law (see People vMarino, 99 AD3d 726, 730-731 [2012]).
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, 348 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict was not against the weight of the evidence(see People v Romero, 7NY3d 633 [2006]).
The defendant's contention, raised in his main brief and points I and III of his pro sesupplemental brief, that certain remarks made by the prosecutor during summation wereimproper is unpreserved for appellate review (see CPL 470.05 [2]; People v Barcero, 116 AD3d1060, 1061 [2014]; Peoplev Barton, 110 AD3d 1089, 1090 [2013]). In any event, this contention iswithout merit, as the prosecutor's remarks were either fair comment on the evidence orresponsive to defense counsel's summation (see People v Collins, 135 AD3d 783 [2016]; People v Willis, 122 AD3d950 [2014]; People v Smith, [*2]64 AD3d619, 620 [2009]). Contrary to the defendant's alternative contention, raised in his mainbrief and point IV of his pro se supplemental brief, he was not deprived of the effectiveassistance of counsel by his attorney's failure to raise specific objections to certainremarks made by the prosecutor during summation. There can be no deprivation ofeffective assistance of counsel arising from the failure to make a motion or argument thathad little or no chance of success (see People v Ennis, 11 NY3d 403, 415 [2008]; People v Stultz, 2 NY3d277, 287 [2004]; People vLiu, 131 AD3d 547, 548 [2015]; People v Fuhrtz, 123 AD3d 735, 736 [2014]; People v Howard, 120 AD3d1259, 1260 [2014]).
The defendant's contention raised in point II of his pro se supplemental brief, relatingto an alleged Brady violation (see Brady v Maryland, 373 US 83 [1963]),is unpreserved for appellate review (see CPL 470.05 [2]; People v Thompson, 81 AD3d670, 672 [2011], affd 22 NY3d 687 [2014]; People v Jacobs, 71 AD3d693 [2010]) and, in any event, without merit (see People v Mitchell, 120 AD3d 1265, 1266 [2014]; People v Tate, 110 AD3d1013, 1014 [2013]).
The defendant's contention, raised in his main brief, that he was improperlyadjudicated a persistent violent felony offender is without merit (see Penal Law§ 70.08 [1]). The defendant is estopped from challenging a 1994 convictionbecause he did not challenge its constitutionality in 2001, when it served as the predicatefor his sentencing as a second violent felony offender (see CPL 400.15 [8];400.16 [2]; People vMitchell, 117 AD3d 970 [2014]; People v Albritton, 69 AD3d 866, 867 [2010]; People v Rodriguez, 49 AD3d903, 904 [2008]). Additionally, after conducting a hearing, the Supreme Courtproperly found that the defendant failed to adduce proof sufficient to support his claimthat a 2001 conviction was unconstitutionally obtained (see People v Quinn, 124 AD3d916 [2015]; People vTocci, 52 AD3d 541, 542 [2008]; People v Williams, 38 AD3d 576 [2007]).
The defendant's remaining contentions are without merit. Dillon, J.P., Dickerson,Austin and Duffy, JJ., concur.