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

385
KA 14-00768
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHRISTOPHER P. ANNIS, DEFENDANT-APPELLANT.


LAW OFFICES OF MAURICE J. VERRILLO, P.C., ROCHESTER (MAURICE J.
VERRILLO OF COUNSEL), FOR DEFENDANT-APPELLANT.

ERIC R. SCHIENER, SPECIAL PROSECUTOR, GENESEO, FOR RESPONDENT.


     Appeal from a judgment of the Allegany County Court (Thomas P.
Brown, J.), rendered April 17, 2013. The judgment convicted
defendant, upon a jury verdict, of driving while intoxicated, a class
E felony, and aggravated unlicensed operation of a motor vehicle in
the first degree.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of, inter alia, felony driving while intoxicated (Vehicle and
Traffic Law §§ 1192 [3]; 1193 [1] [c] [i]), defendant contends that
the evidence is legally insufficient to establish that he was driving
at the time of the accident. Defendant failed to preserve that
contention for our review inasmuch as he failed to renew his motion
for a trial order of dismissal after presenting evidence (see People v
Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). In any event, we
conclude that defendant’s contention is without merit.

     “It is well settled that, even in circumstantial evidence cases,
the standard for appellate review of legal sufficiency issues is
whether any valid line of reasoning and permissible inferences could
lead a rational person to the conclusion reached by the [factfinder]
on the basis of the evidence at trial, viewed in the light most
favorable to the People” (People v Pichardo, 34 AD3d 1223, 1224, lv
denied 8 NY3d 926 [internal quotation marks omitted]; see People v
Bleakley, 69 NY2d 490, 495). Here, we conclude that “there is ample
evidence in the record from which the jury could have reasonably
concluded that defendant was indeed driving at the time of the
accident” (People v Maricevic, 52 AD3d 1043, 1044, lv denied 11 NY3d
790). When the police arrived at the scene, they observed that the
vehicle had flipped over and that the driver’s side window had been
smashed. The police found defendant’s wallet containing his driver’s
                                 -2-                           385
                                                         KA 14-00768

license on the ceiling above the driver’s seat. The police observed
only one set of footprints leading away from the vehicle, which they
followed, and eventually located defendant. Defendant, who appeared
to be intoxicated, admitted that he had been drinking and that he was
in the accident, but he denied that he was driving and refused to
identify the alleged driver. No other individuals were observed in
the vicinity of the accident. We further conclude that, viewing the
evidence in light of the elements of the crimes as charged to the jury
(see People v Danielson, 9 NY3d 342, 349), the verdict is not against
the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
“The resolution of credibility issues by the jury and its
determination of the weight to be given to the evidence are accorded
great deference” (People v Wallace, 306 AD2d 802, 802; see Bleakley,
69 NY2d at 495; People v Lopez, 96 AD3d 1621, 1622, lv denied 19 NY3d
998), and there is no reason to disturb that determination here (see
People v Morrison, 48 AD3d 1044, 1045, lv denied 10 NY3d 867; People v
Panek, 305 AD2d 1098, 1098, lv denied 100 NY2d 623).

     Defendant further contends that he was denied effective
assistance of counsel because, inter alia, defense counsel withdrew
his request for a Martin hearing, failed to call a particular witness,
and failed to speak to one of the People’s witnesses before trial. To
the extent that defendant’s contention “involve[s] matters outside the
record on appeal, . . . the proper procedural vehicle for raising
[that] contention[] is a motion pursuant to CPL 440.10” (People v
Archie, 78 AD3d 1560, 1562, lv denied 16 NY3d 856). To the extent
that defendant’s contention is properly before us, we conclude that
defendant received meaningful representation (see generally People v
Baldi, 54 NY2d 137, 147).

     Defendant’s contention that he was denied a fair trial by
prosecutorial misconduct is not preserved for our review (see People v
Ross, 118 AD3d 1413, 1416-1417, lv denied 24 NY3d 964), and we decline
to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).
Finally, the sentence is not unduly harsh or severe.




Entered:   March 27, 2015                       Frances E. Cafarell
                                                Clerk of the Court
