Opinion
2013-11-8
The PEOPLE of the State of New York, Respondent, v. John COLE, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, FAHEY, SCONIERS, AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, after a nonjury trial, of robbery in the third degree (Penal Law § 160.05). Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, we conclude that the conviction is supported by legally sufficient evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Furthermore, viewing the evidence in light of the elements of the crime in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Where, as here, the defendant's challenge is focused upon the credibility of the witnesses, we accord “great deference to the resolution of credibility issues by the trier of fact 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. Vanlare, 77 A.D.3d 1313, 1315, 910 N.Y.S.2d 328,lv. denied15 N.Y.3d 956, 917 N.Y.S.2d 116, 942 N.E.2d 327 [internal quotation marks omitted] ). Consequently, although a different verdict would not have been unreasonable based on all of the credible evidence ( see Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1;Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), County Court specifically credited the victim's testimony, and we see no basis to disturb that determination.
Additionally, inasmuch as defendant's challenge to the legal sufficiency of the evidence is without merit, there is also no merit to his further contention that he was denied effective assistance of counsel because defense counsel failed to preserve that challenge for our review ( see People v. Stephenson, 104 A.D.3d 1277, 1279, 960 N.Y.S.2d 823,lv. denied21 N.Y.3d 1020, 971 N.Y.S.2d 502, 994 N.E.2d 398;People v. Perez, 89 A.D.3d 1393, 1394, 932 N.Y.S.2d 628,lv. denied18 N.Y.3d 961, 944 N.Y.S.2d 489, 967 N.E.2d 714). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.