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

583
KA 13-01650
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TIGE BILLINGSLEY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered August 19, 2013. The judgment
convicted defendant, upon a nonjury verdict, of robbery in the first
degree, burglary in the first degree and assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him following a
nonjury trial of, inter alia, assault in the second degree (Penal Law
§ 120.05 [12]), defendant contends that the evidence is legally
insufficient with respect to two elements of that crime, i.e., his age
and the physical injury sustained by the victim. Because defendant’s
motion for a trial order of dismissal was not “ ‘specifically
directed’ at th[ose] alleged error[s],” defendant failed to preserve
his contention for our review (People v Gray, 86 NY2d 10, 19). To the
extent that defendant preserved for our review his challenge to the
sufficiency of the corroboration of the accomplice testimony, we
reject that challenge. The victim’s equivocal in-court identification
“was sufficient to satisfy the minimal requirements of the accomplice
corroboration statute” (People v Jones, 85 NY2d 823, 825).

     Viewing the evidence in light of the elements of the crimes in
this nonjury trial (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s contention that the verdict is against the weight
of the evidence (see generally People v Bleakley, 69 NY2d 490, 495).
Indeed, based upon our independent review of the evidence, we conclude
that a different verdict would have been unreasonable (see People v
Peters, 90 AD3d 1507, 1508, lv denied 18 NY3d 996; see generally
Bleakley, 69 NY2d at 495).

     We reject defendant’s further contention that he was denied
                                 -2-                           583
                                                         KA 13-01650

effective assistance of counsel based on defense counsel’s failure to
move for severance. It is well settled that “[t]here can be no denial
of effective assistance of trial counsel arising from counsel’s
failure to ‘make a motion or argument that has little or no chance of
success’ ” (People v Caban, 5 NY3d 143, 152, quoting People v Stultz,
2 NY3d 277, 287, rearg denied 3 NY3d 702). We conclude that a motion
for severance of counts of the indictment had little or no chance of
success (see CPL 200.20 [2] [b]).

     Defendant’s remaining contention involves matters that are
outside the record on appeal and must be raised by way of a motion
pursuant to CPL 440.10 (see People v Fox, 124 AD3d 1252, 1253).




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
