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

655
KA 11-01136
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

YAQUIN ABDULLA, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered March 25, 2011. The judgment
convicted defendant, upon a jury verdict, of grand larceny in the
fourth 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 [5]). Viewing the evidence in light of that 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). “[R]esolution of
issues of credibility, as well as the weight to be accorded to the
evidence presented, are primarily questions to be determined by the
jury” (People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942
[internal quotation marks omitted]). Defendant’s contention that
Supreme Court erred in admitting testimony with respect to a letter
defendant wrote to the District Attorney is not preserved for our
review (see CPL 470.05 [2]; People v Woods, 72 AD3d 1563, 1564, lv
denied 15 NY3d 811). In any event, even assuming, arguendo, that
defendant is correct that the court erred in admitting testimony as to
the subject letter, we conclude that any such error is harmless (see
People v Slater, 61 AD3d 1328, 1329, lv denied 13 NY3d 749; see
generally People v Crimmins, 36 NY2d 230, 241-242). Defendant’s
further contention that the People violated CPL 190.75 (3) by
improperly resubmitting the charge of robbery in the third degree when
they sought a superseding indictment lacks merit (see generally People
v Scott, 283 AD2d 1006, 1006, lv denied 96 NY2d 207) and, in any
event, that contention was rendered moot when the jury acquitted
defendant of that crime. Finally, viewing the evidence, the law and
                                 -2-                           655
                                                         KA 11-01136

the circumstances of this case, in totality and as of the time of
representation, we conclude that defendant received meaningful
representation (see generally People v Baldi, 54 NY2d 137, 147). We
note that “claims of ineffective assistance based on [the] choice[]
[not to request a lesser included offense] must usually be adjudicated
in [a] posttrial motion[], so that evidence may be presented to show
why counsel acted as he [or she] did” (People v Nesbitt, 20 NY3d 1080,
1082) and, here, defense counsel did not explain on the record why he
did not seek that charge (cf. id. at 1082; see generally People v
March, 89 AD3d 1496, 1497, lv denied 18 NY3d 926; People v Calderon,
66 AD3d 314, 320, lv denied 13 NY3d 358).




Entered:   June 20, 2014                       Frances E. Cafarell
                                               Clerk of the Court
