COLE, JOHN, PEOPLE v ( 2013 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1057
KA 11-02354
PRESENT: SCUDDER, P.J., SMITH, FAHEY, SCONIERS, AND VALENTINO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
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.
Appeal from a judgment of the Erie County Court (Sheila A.
DiTullio, J.), rendered October 11, 2011. The judgment convicted
defendant, after a nonjury trial, of robbery in the third degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
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 NY2d 10,
19). In any event, we conclude that the conviction is supported by
legally sufficient evidence (see generally People v Bleakley, 69 NY2d
490, 495). Furthermore, viewing the evidence in light of the elements
of the crime in this nonjury trial (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). 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 AD3d 1313, 1315, lv denied 15
NY3d 956 [internal quotation marks omitted]). Consequently, although
a different verdict would not have been unreasonable based on all of
the credible evidence (see Danielson, 9 NY3d at 348; Bleakley, 69 NY2d
at 495), 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
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KA 11-02354
counsel because defense counsel failed to preserve that challenge for
our review (see People v Stephenson, 104 AD3d 1277, 1279, lv denied 21
NY3d 1020; People v Perez, 89 AD3d 1393, 1394, lv denied 18 NY3d 961).
Finally, the sentence is not unduly harsh or severe.
Entered: November 8, 2013 Frances E. Cafarell
Clerk of the Court