People v. Moye , 782 N.Y.S.2d 195 ( 2004 )

Appeal from a judgment of the Supreme Court, Erie County (Mario J. Rossetti, A.J.), rendered April 24, 2002. The judgment convicted defendant, upon a jury verdict, of attempted assault in the first degree and criminal possession of a weapon in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him after a jury trial of attempted assault in the first degree (Penal Law §§ 110.00, 120.10 [1]) and criminal possession of a weapon in the second degree (§ 265.03 [2]). We reject the contention of defendant that Supreme Court erred in refusing to suppress his written statements. Defendant’s written statements were made after defendant received Miranda warnings, and the record establishes that defendant voluntarily waived his Miranda rights (see People v Witherspoon, 66 NY2d 973, 973-974 [1985]). Also contrary to the contention of defendant, he received effective assistance of counsel (see People v Baldi, 54 NY2d 137, 147 [1981]). Defendant concedes that he failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, that contention lacks merit, and defendant’s further contention that the verdict is against the weight of the evidence is similarly lacking in merit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The People presented the testimony of the victim and an eyewitness, each of whom identified defendant as the shooter, and the jury was entitled to credit their testimony over that of defendant’s alibi witnesses (see generally id.; People v Shedrick, 66 NY2d 1015, 1018 [1985], rearg denied 67 NY2d 758 [1986]). The sentence is not unduly harsh or severe. We have reviewed defendant’s remaining contentions and conclude that they are without merit. Present—Hurlbutt, J.P., Gorski, Martoche, Lawton and Hayes, JJ.