        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1072
KA 11-00577
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DEYON T. ROBERTS, DEFENDANT-APPELLANT.


KEVIN J. BAUER, ALBANY, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered March 4, 2011. The judgment convicted
defendant, upon a jury verdict, of burglary in the second 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 burglary in the second degree (Penal Law §
140.25 [2]). Defendant failed to preserve for our review his
contention that the evidence is legally insufficient to support the
conviction because his motion to dismiss was not specifically directed
at the ground advanced on appeal (see People v Gray, 86 NY2d 10, 19;
People v Ange, 37 AD3d 1143, 1144, lv denied 9 NY3d 839). Viewing the
evidence in light of the elements of the crime as charged to the jury
(see People v Danielson, 9 NY3d 342, 349), we conclude that the
verdict is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495). We note in particular that the
jury’s credibility determinations are entitled to great deference
“ ‘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’ ” (see Ange,
37 AD3d at 1144, quoting People v Lane, 7 NY3d 888, 890).

     We reject defendant’s further contention that he did not receive
effective assistance of counsel. Rather, we conclude that “the
defense reflect[ed] a reasonable and legitimate strategy under the
circumstances and evidence presented,” and thus it did “not fall to
the level of ineffective assistance” (People v Benevento, 91 NY2d 708,
712-713; see generally People v Baldi, 54 NY2d 137, 147).

     Finally, we reject defendant’s contention that County Court erred
in adjudicating him a persistent violent felony offender pursuant to
                                 -2-                         1072
                                                        KA 11-00577

CPL 400.16. Prior to his conviction herein for a class C violent
felony offense (see CPL 70.02 [1] [b]), defendant was convicted of two
violent felony offenses, i.e., attempted robbery in the first degree
in 1998 and attempted burglary in the first degree in 2002. Defendant
is precluded from challenging the constitutionality of the 1998
conviction because he failed to challenge the constitutionality of
that conviction in the 2002 proceedings (see People v Wilson, 231 AD2d
912, 913, lv denied 89 NY2d 868). We have examined defendant’s
remaining contention and conclude that it lacks merit.


                                               Frances E. Cafarell




Entered:   November 8, 2013
                                               Clerk of the Court
