WILSON, NJERA A., PEOPLE v ( 2013 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1179
KA 10-02347
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
NJERA A. WILSON, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.
NJERA A. WILSON, DEFENDANT-APPELLANT PRO SE.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered November 23, 2010. The judgment convicted
defendant, upon a jury verdict, of burglary in the second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of burglary in the second degree (Penal Law §
140.25 [2]). The general motion by defendant for a trial order of
dismissal is insufficient to preserve for our review his contention
that the verdict is not supported by legally sufficient evidence (see
People v Gray, 86 NY2d 10, 19). In any event, we reject defendant’s
contention. Viewing the evidence in the light most favorable to the
People (see People v Contes, 60 NY2d 620, 621), we conclude that there
is a valid line of reasoning and permissible inferences to support the
jury’s finding that defendant committed the crime of which he was
convicted based upon the evidence at trial (see generally People v
Bleakley, 69 NY2d 490, 495). We therefore further conclude that
defendant was not denied effective assistance of counsel based on
defense counsel’s failure to move for a trial order of dismissal on
more specific grounds. It is well settled that “ ‘[a] defendant is
not denied effective assistance of trial counsel [where defense]
counsel does not make a motion or argument that has little or no
chance of success’ ” (People v March, 89 AD3d 1496, 1497, lv denied 18
NY3d 926, quoting People v Stultz, 2 NY3d 277, 287, rearg denied 3
NY3d 702).
Defendant further contends that the verdict is against the weight
of the evidence because the testimony of the victim was not credible.
-2- 1179
KA 10-02347
The credibility issues identified by defendant on appeal were placed
before the jury, and “[w]e accord great deference to the [jury’s]
resolution of [those] credibility issues . . . ‘because those who see
and hear the witnesses can assess their credibility and reliability in
a manner that is far superior to that of reviewing judges who must
rely on the printed record’ ” (People v Ange, 37 AD3d 1143, 1144, lv
denied 9 NY3d 839, quoting People v Lane, 7 NY3d 888, 890). Viewing
the evidence in light of the elements of the crime as charged to the
jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the
verdict is not against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495).
Contrary to defendant’s contention, the showup identification
procedure was not unduly suggestive, and County Court properly
permitted the in-court identification of defendant. Although showup
procedures are generally disfavored (see People v Ortiz, 90 NY2d 533,
537), “such procedures are permitted ‘where [they are] reasonable
under the circumstances—that is, when conducted in close geographic
and temporal proximity to the crime—and the procedure used was not
unduly suggestive’ ” (People v Woodard, 83 AD3d 1440, 1441, lv denied
17 NY3d 803, quoting People v Brisco, 99 NY2d 596, 597). Here,
defendant was apprehended one block from the scene of the crime and
within minutes of its occurrence. Also contrary to defendant’s
contention, the showup procedure was not rendered unduly suggestive by
the fact that defendant was handcuffed and in a patrol car when he was
returned to the scene of the crime (see People v Duuvon, 77 NY2d 541,
545; People v Santiago, 83 AD3d 1471, 1471, lv denied 17 NY3d 800;
People v Stoneham, 50 AD3d 1575, 1576, lv denied 10 NY3d 940).
By failing to object to the court’s ultimate Sandoval ruling,
defendant failed to preserve for our review his present challenge to
that ruling (see People v Miller, 59 AD3d 1124, 1125, lv denied 12
NY3d 819; People v Caito, 23 AD3d 1135, 1136). In any event, that
contention is without merit (see generally People v Hayes, 97 NY2d
203, 207-208).
Finally, the contentions of defendant in his pro se supplemental
brief do not warrant reversal or modification of the judgment.
Specifically, the prosecutor’s comments during summation were “either
a fair response to defense counsel’s summation or fair comment on the
evidence” (People v McEathron, 86 AD3d 915, 916 [internal quotation
marks omitted], lv denied 19 NY3d 975). Similarly, the court’s Allen
charge and its instructions on interested witnesses and the failure to
testify were proper (see People v Alvarez, 86 NY2d 761, 763; see
generally People v Bell, 38 NY2d 116, 120). We therefore also
conclude that defendant’s ineffective assistance contention as it
relates to defense counsel’s failure to object to those comments and
charges is without merit (see Stultz, 2 NY3d at 287).
Entered: March 15, 2013 Frances E. Cafarell
Clerk of the Court