         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1304
KA 10-02450
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

JERRY JOSLYN, SR., DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

JASON L. COOK, DISTRICT ATTORNEY, PENN YAN (PATRICK T. CHAMBERLAIN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Yates   County Court (W. Patrick
Falvey, J.), rendered November 9, 2010.    The judgment convicted
defendant, upon a jury verdict, of grand   larceny in the fourth degree
and falsely reporting an incident 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
upon a jury verdict of grand larceny in the fourth degree (Penal Law §
155.30 [7]), for trading a rifle that had been placed in his
possession for safe keeping, and falsely reporting an incident in the
third degree (§ 240.50 [3] [a]), for falsely reporting a burglary to
cover up the larceny. Defendant contends that the evidence is legally
insufficient to support his conviction inasmuch as his testimony that
he was on pain medication that caused memory loss and confusion
demonstrated that he lacked the requisite intent to commit the charged
crimes. Defendant failed to preserve that contention for our review
(see People v Gray, 86 NY2d 10, 19), and in any event his contention
lacks merit. “[V]iewing the evidence in the light most favorable to
the prosecution” (People v Contes, 60 NY2d 620, 621), we conclude that
a rational jury could have found that, despite defendant’s alleged
intoxication, defendant intended to “ ‘deprive [the victim] of [his
rifle] or to appropriate the same’ ” (People v Jennings, 69 NY2d 103,
118, quoting § 155.05 [1]; see generally People v Bleakley, 69 NY2d
490, 495) and knowingly made a false report (see generally § 240.50).
Additionally, although a different result would not have been
unreasonable (see People v Danielson, 9 NY3d 342, 348), we conclude
that, viewing the evidence in light of the element of intent as
charged to the jury (see id. at 349), the verdict with respect to that
element is not against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495).
                                 -2-                          1304
                                                         KA 10-02450

     Defendant further contends that County Court erred in granting
the prosecutor’s motion in limine seeking to preclude defense counsel
from impeaching the People’s witnesses upon cross-examination with
certain prior arrests and traffic infractions. Defense counsel,
however, waived that contention when he confirmed that he had no
objection to the court’s ruling (see generally People v Graham, 292
AD2d 824, 824, lv denied 98 NY2d 697). With respect to defendant’s
contention that the prosecutor’s cross-examination of him exceeded the
scope of direct examination, we note that, “in a criminal case, a
party may prove through cross-examination any relevant proposition,
regardless of the scope of direct examination” (People v Sanders, 2
AD3d 1420, 1420-1421 [internal quotation marks omitted]).

     Finally, we reject defendant’s contention that he was denied
effective assistance of counsel. Although defendant contends that
defense counsel was ineffective because he did not oppose the
prosecutor’s in limine motion, “ ‘[a] defendant is not denied
effective assistance of trial counsel merely because counsel does not
make a motion or argument that has little or no chance of success’ ”
(People v Harris, 97 AD3d 1111, 1111-1112, lv denied 19 NY3d 1026,
quoting People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702).
Additionally, “ ‘it is incumbent on defendant to demonstrate the
absence of strategic or other legitimate explanations’ for [defense]
counsel’s alleged shortcomings” (People v Benevento, 91 NY2d 708, 712,
quoting People v Rivera, 71 NY2d 705, 709), and here defendant failed
to meet that burden (see People v Rogers, 70 AD3d 1340, 1340, lv
denied 14 NY3d 892, cert denied ___ US___, 131 S Ct 475). Instead,
“the evidence, the law, and the circumstances of [this] case, viewed
in totality and as of the time of representation, reveal that [defense
counsel] provided meaningful representation” (People v Baldi, 54 NY2d
137, 147).




Entered:   February 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
