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

1177
KA 11-00576
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JAMES WILLIAMS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered January 5, 2011. The judgment convicted
defendant, upon a nonjury verdict, of attempted arson 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 nonjury verdict of attempted arson in the second degree (Penal
Law §§ 110.00, 150.15). Contrary to defendant’s contention, viewing
the evidence in the light most favorable to the People (see People v
Contes, 60 NY2d 620, 621), we conclude that the evidence is legally
sufficient to support the conviction (see generally People v Bleakley,
69 NY2d 490, 495). Furthermore, viewing the evidence in light of the
elements of the crime in this nonjury trial (see People v Danielson, 9
NY3d 342, 349), we conclude that the verdict is not against the weight
of the evidence (see generally Bleakley, 69 NY2d at 495).

     Finally, defendant contends that County Court erred in sentencing
him as a second felony offender based upon a prior conviction in the
State of South Carolina. By consenting to the use of that conviction
as a predicate for sentencing enhancement purposes, defendant waived
his right to appellate review of his contention (see generally People
v Walker, 96 AD3d 1481, 1482; People v Hicks, 12 AD3d 1044, 1045, lv
denied 4 NY3d 799).




Entered:    November 9, 2012                       Frances E. Cafarell
                                                   Clerk of the Court
