| People v Virapen |
| 2017 NY Slip Op 01237 [147 AD3d 981] |
| February 15, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael Virapen, Appellant. |
Robert DiDio, Kew Gardens, NY (Danielle Muscatello of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Joseph N. Ferdenzi, and Antara D. Kanth of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.),rendered January 21, 2016, convicting him of criminal obstruction of breathing or bloodcirculation, endangering the welfare of a child (two counts), and harassment in the seconddegree, after a nonjury trial, and imposing sentence.
Ordered that the judgment is modified, on the law and the facts, by vacating the conviction ofharassment in the second degree, vacating the sentence imposed thereon, and dismissing thatcount of the indictment; as so modified, the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence supporting his convictionof criminal obstruction of breathing or blood circulation is unpreserved for appellate review(see CPL 470.05; People vHawkins, 11 NY3d 484, 491-492 [2008]). In any event, viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), wefind that it was legally sufficient to establish the defendant's guilt of the crime of criminalobstruction of breathing or blood circulation beyond a reasonable doubt. Moreover, in fulfillingour responsibility to conduct an independent review of the weight of the evidence (seeCPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to theopportunity of the finder of fact to view the witnesses, hear testimony, and observe demeanor(see People v Mateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt as to the countof criminal obstruction of breathing or blood circulation and both counts of endangering thewelfare of a child was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). The fact that thedefendant was acquitted of the count of strangulation in the second degree (Penal Law§ 121.12), and the count of assault in the third degree (Penal Law§ 120.00 [1]), did not undermine the weight of the evidence supporting the court'sverdict on the counts of criminal obstruction of breathing or blood circulation and endangeringthe welfare of a child (Penal Law §§ 121.11, 260.10 [1]; see People v White, 100 AD3d1397, 1399 [2012]).
The defendant's contention that the evidence was legally insufficient to support his [*2]conviction of harassment in the second degree is unpreserved forappellate review, except to the extent that he challenges the sufficiency of the complainant'stestimony that he was pushed or fell (see CPL 470.05; People v Hawkins, 11NY3d at 491-492; People v Mollaie,81 AD3d 1448, 1449 [2011]). However, upon our independent review of the record (seeCPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we find that the verdict of guilt on this count wasagainst the weight of the evidence as to the element of intent to "harass, annoy or alarm" thecomplainant (Penal Law § 240.26 [1]; see People v Caulkins, 82 AD3d 1506 [2011]; see also Matter of Mamantov vMamantov, 86 AD3d 540, 541 [2011]). Accordingly, we vacate the conviction ofharassment in the second degree and the sentence imposed thereon, and dismiss that count of theindictment.
Contrary to the defendant's contention, he was not deprived of the effective assistance ofcounsel by his trial attorney's failure to object to the admission of audiotapes of two 911telephone calls. There can be no deprivation of effective assistance of counsel arising from thefailure to make a motion or argument that, as here, had little or no chance of success (see People v Stultz, 2 NY3d 277,287 [2004]; People v Moss, 138AD3d 761, 762 [2016]; see alsoPeople v Wallace, 79 AD3d 1075, 1075-1076 [2010]; People v Carrenard, 56 AD3d486, 487-488 [2008]; People vJamerson, 21 AD3d 428, 428 [2005]). Balkin, J.P., Hall, LaSalle and Barros, JJ.,concur.