People v. Moss

138 A.D.3d 761

29 N.Y.S.3d 452

2016 N.Y. Slip Op. 02668

The PEOPLE, etc., respondent,

v.Joseph MOSS, appellant.

2014-01992, Ind. No. 2432/10.

Supreme Court, Appellate Division, Second Department, New York.

April 6, 2016.

Mark Diamond, New York, N.Y., for appellant, and appellant pro se.

Madeline Singas, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Donald Berk of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and COLLEEN D. DUFFY, JJ.

Appeal by the defendant from a judgment of the Supreme Court, NassauCounty (Berkowitz, J.), rendered February 24, 2014, convicting him of burglary in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention, raised in his main brief, that the evidence was legally insufficient to establish his guilt is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish his guilt beyond a reasonable doubt. The evidence of the defendant's identity as the perpetrator of the subject burglaries, which included DNA evidence, although circumstantial and lacking in any positive identification by the complainants, established a prima facie case as to identity (see People v. Guzman, 116 A.D.3d 790, 791, 982 N.Y.S.2d 908 ; People v. Dolan, 2 A.D.3d 745, 746, 768 N.Y.S.2d 654 ). Contrary to the defendant's contention, the transcription errors contained in the reports of the People's expert regarding, among other things, the date of DNA testing of samples extracted from items found at the crime scenes, did not render the expert's testimony unreliable as a matter of law (see People v. Marino, 99 A.D.3d 726, 730–731, 951 N.Y.S.2d 740 ).

Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

The defendant's contention, raised in his main brief and points I and III of his pro se supplemental brief, that certain remarks made by the prosecutor during summation were improper is unpreserved for appellate review (see CPL 470.05[2] ; People v. Barcero, 116 A.D.3d 1060, 1061, 984 N.Y.S.2d 419 ; People v. Barton, 110 A.D.3d 1089, 1090, 973 N.Y.S.2d 760 ). In any event, this contention is without merit, as the prosecutor's remarks were either fair comment on the evidence or responsive to defense counsel's summation (see People v. Collins, 135 A.D.3d 783, 22 N.Y.S.3d 882 ; People v. Willis, 122 A.D.3d 950, 997 N.Y.S.2d 472 ; People v. Smith, 64 A.D.3d 619, 620, 883 N.Y.S.2d 94 ). Contrary to the defendant's alternative contention, raised in his main brief and point IV of his pro se supplemental brief, he was not deprived of the effective assistance of counsel by his attorney's failure to raise specific objections to certain remarks made by the prosecutor during summation. There can be no deprivation of effective assistance of counsel arising from the failure to make a motion or argument that had little or no chance of success (see People v. Ennis, 11 N.Y.3d 403, 415, 872 N.Y.S.2d 364, 900 N.E.2d 915 ; People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 ; People v. Liu, 131 A.D.3d 547, 548, 14 N.Y.S.3d 506 ; People v. Fuhrtz, 123 A.D.3d 735, 736, 997 N.Y.S.2d 488 ; People v. Howard, 120 A.D.3d 1259, 1260, 992 N.Y.S.2d 144 ).

The defendant's contention raised in point II of his pro se supplemental brief, relating to an alleged Brady violation (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 ), is unpreserved for appellate review (see CPL 470.05[2] ; People v. Thompson, 81 A.D.3d 670, 672, 916 N.Y.S.2d 151, aff'd. 22 N.Y.3d 687, 985 N.Y.S.2d 428, 8 N.E.3d 803 ; People v. Jacobs, 71 A.D.3d 693, 894 N.Y.S.2d 908 ) and, in any event, without merit (see

People v. Mitchell, 120 A.D.3d 1265, 1266, 992 N.Y.S.2d 112 ; People v. Tate, 110 A.D.3d 1013, 1014, 972 N.Y.S.2d 719 ).

The defendant's contention, raised in his main brief, that he was improperly adjudicated a persistent violent felony offender is without merit (see Penal Law § 70.08[1] ). The defendant is estopped from challenging a 1994 conviction because he did not challenge its constitutionality in 2001, when it served as the predicate for his sentencing as a second violent felony offender (see CPL 400.15[8] ; 400.16[2]; People v. Mitchell, 117 A.D.3d 970, 985 N.Y.S.2d 916 ; People v. Albritton, 69 A.D.3d 866, 867, 891 N.Y.S.2d 914 ; People v. Rodriguez,

49 A.D.3d 903, 904, 854 N.Y.S.2d 496 ). Additionally, after conducting a...