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

1100
KA 10-01866
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONALD MCCOY, DEFENDANT-APPELLANT.


DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.

RONALD MCCOY, DEFENDANT-APPELLANT PRO SE.

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 July 7, 2010. The judgment convicted
defendant, upon a nonjury verdict, of burglary in the second degree,
robbery in the second degree and criminal possession of a weapon in
the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence imposed for
criminal possession of a weapon in the third degree under the third
count of the indictment and as modified the judgment is affirmed, and
the matter is remitted to Erie County Court for resentencing on that
count of the indictment.

     Memorandum: Defendant appeals from a judgment convicting him
following a nonjury trial of burglary in the second degree (Penal Law
§ 140.25 [1] [d]), robbery in the second degree (§ 160.10 [2] [b]),
and criminal possession of a weapon in the third degree (§ 265.02
[1]). Viewing the evidence in light of the elements of the crimes 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 People v Bleakley, 69 NY2d 490, 495). “In a bench
trial, no less than a jury trial, the resolution of credibility issues
by the trier of fact and its determination of the weight to be
accorded the evidence presented are entitled to great deference”
(People v Van Akin, 197 AD2d 845, 845). County Court was entitled to
reject defendant’s version of the events “and, upon our review of the
record, we cannot say that the court failed to give the evidence the
weight that it should be accorded” (People v Britt, 298 AD2d 984, 984,
lv denied 99 NY2d 556).

     Defendant’s contention in his main and pro se supplemental briefs
                                 -2-                          1100
                                                         KA 10-01866

regarding the legal sufficiency of the evidence before the grand jury
is not properly before us. “Having failed to challenge the [legal]
sufficiency of the trial evidence, defendant may not now challenge the
[legal] sufficiency of the evidence before the grand jury” (People v
Wimberly, 86 AD3d 806, 807, lv denied 18 NY3d 863; see People v Smith,
4 NY3d 806, 808; see also CPL 210.30 [6]). Additionally, by
affirmatively requesting that the court charge criminal possession of
a weapon in the third degree as a lesser included offense of criminal
possession of a weapon in the second degree, defendant waived the
contention in his main brief that the court erred in doing so (see
People v Richardson, 88 NY2d 1049, 1051; People v Carter, 38 AD3d
1291, 1292).

     We reject defendant’s contention in his main brief that the five-
year period of postrelease supervision imposed by the court for the
robbery and burglary conviction renders his sentence unduly harsh and
severe. As the People correctly concede, however, the determinate
sentence and period of postrelease supervision imposed by the court
for the conviction of criminal possession of a weapon in the third
degree (Penal Law § 265.02 [1]), a nonviolent class D felony, is
illegal (see §§ 70.45 [1]; 70.06 [3] [d]; [4] [b]; People v Winfield,
83 AD3d 745, 746). We therefore modify the judgment by vacating the
sentence imposed for that conviction, and we remit the matter to
County Court for resentencing on count three of the indictment.




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