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

559
KA 09-00322
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY JOHNSON, DEFENDANT-APPELLANT.


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

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C.
AZZARELLI OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered December 3, 2008. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the third degree.

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

     Memorandum: Defendant appeals from a judgment convicting him,
following a jury trial, of criminal possession of a weapon in the
third degree (Penal Law § 265.02 [1]). Defendant contends that,
because the jury acquitted him of attempted robbery in the first
degree (§§ 110.00, 160.15 [3]), the verdict with respect to the
weapons offense necessarily is repugnant and thus is against the
weight of the evidence. We reject that contention. The crime
occurred shortly before midnight outside a nightclub in Syracuse. The
victim, a Chief Warrant Officer in the United States Army, testified
at trial that defendant approached him in the parking lot and, after
flashing what appeared to be a knife or gun in his jacket, said, “Give
me money or I will kill you.” The victim refused to comply with
defendant’s demand and in turn threatened to shoot defendant, who
thereupon walked away. When defendant was stopped by the police
shortly after being contacted by the victim, he was found to have a
large knife in the pocket of his jacket. We conclude with respect to
the weapons offense that, based on the victim’s testimony, the jury
could have found that defendant used the knife “unlawfully against
another” (§ 265.01 [2]), i.e., to intimidate the victim, regardless of
whether defendant ultimately intended to stab the victim (see People v
Durand, 188 AD2d 747, 747-748, lv denied 81 NY2d 884). At the same
time, the jury could have reasonably found with respect to the
attempted robbery charge of which defendant was acquitted that, given
the reaction of the victim, defendant’s attempt to steal money from
                                 -2-                           559
                                                         KA 09-00322

him did not come “ ‘dangerously close’ ” to fruition (People v
Lamagna, 30 AD3d 1052, 1053, lv denied 7 NY3d 814).

     Defendant’s further challenge to the weight of the evidence is
based largely upon a challenge to the credibility of the victim, who
did not know defendant and had no apparent motive for falsely accusing
him of a crime. Although defendant testified at trial that he never
approached or spoke to the victim, the jury chose to credit the
testimony of the victim over that of defendant, and there is no basis
in the record for us to disturb the jury’s credibility determinations
(see People v Morgan, 77 AD3d 1419, 1420, lv denied 15 NY3d 922).
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). Even assuming,
arguendo, that a different verdict would not have been unreasonable,
we cannot conclude that the jury failed to give the evidence the
weight it should be accorded (see People v Kalen, 68 AD3d 1666, 1666-
1667, lv denied 14 NY3d 842; see generally Bleakley, 69 NY2d at 495).

     We also reject defendant’s remaining contention that he was
deprived of effective assistance of counsel. Because, as noted, the
verdict is not repugnant, defense counsel cannot be faulted for
failing to object to the verdict on that ground before the jury was
discharged (see generally People v Satloff, 56 NY2d 745, 746, rearg
denied 57 NY2d 674). It is well settled that an attorney’s “failure
to ‘make a motion or argument that has little or no chance of
success’ ” does not amount to ineffective assistance (People v Caban,
5 NY3d 143, 152). Although defense counsel erred in attempting to
serve the People by fax with defendant’s notice of intent to testify
before the grand jury (see CPL 190.50 [5] [a]), that error alone does
not render his representation ineffective. The “failure of defense
counsel to facilitate defendant’s testimony before the grand jury does
not, per se, amount to the denial of effective assistance of counsel”
(People v Simmons, 10 NY3d 946, 949). Here, as in Simmons, “defendant
failed to establish that he was prejudiced by the failure of his
attorney to effectuate his appearance before the grand jury” (id.).




Entered:   April 27, 2012                       Frances E. Cafarell
                                                Clerk of the Court
