         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
111
KA 11-00447
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILBERT T. MAXWELL, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered January 31, 2011. The judgment convicted
defendant, upon a nonjury verdict, of robbery 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
nonjury verdict, of robbery in the first degree (Penal Law § 160.15
[4]), defendant contends that the evidence is legally insufficient to
support his conviction because the People failed to establish that the
gun recovered by the police and allegedly used by defendant in the
robbery was a “pistol, revolver, rifle, shotgun, machine gun, or other
firearm” within the meaning of Penal Law § 160.15 (4). We reject that
contention. A person is guilty of robbery in the first degree
pursuant to Penal Law § 160.15 (4) “when he [or she] forcibly steals
property and when, in the course of the commission of the crime or of
immediate flight therefrom, he [or she] . . . [d]isplays what appears
to be a pistol, revolver, rifle, shotgun, machine gun or other firearm
. . . .” Thus, in order to convict defendant of that crime, County
Court “was not required to find that defendant displayed an actual
firearm during the commission of the crime, but only that []he
displayed what appeared to be a pistol, revolver, rifle, shotgun,
machine gun, or other firearm” (People v Jennings, 279 AD2d 284, 285,
lv denied 96 NY2d 830), and there is ample evidence of that element.
Indeed, the victim described the weapon used in the robbery as a “big
black gun,” and she drew a picture of the gun, which was admitted in
evidence. The investigating detective testified that, based upon that
drawing, he believed that the weapon was a MAC-10, a machine-type
pistol. The police subsequently recovered a loaded M-11 pistol in
connection with another investigation, and the major DNA profile from
that gun matched that of defendant. At trial, the victim identified
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                                                         KA 11-00447

the M-11 as the gun defendant pointed at her during the robbery.
Defendant also contends that the evidence is legally insufficient to
support the conviction because the victim’s testimony lacked
credibility. We reject that contention. The victim’s testimony was
not incredible as a matter of law “inasmuch as it was not impossible
of belief, i.e., it was not manifestly untrue, physically impossible,
contrary to experience, or self-contradictory” (People v Gaston, 100
AD3d 1463, 1464 [internal quotation marks omitted]; see People v
Walker, 50 AD3d 1452, 1452-1453, lv denied 11 NY3d 795,
reconsideration denied 11 NY3d 931; People v Olivero, 289 AD2d 1082,
1083, lv denied 98 NY2d 639). We thus conclude that, “viewing the
facts in a light most favorable to the People, ‘there is a valid line
of reasoning and permissible inferences from which a rational [trier
of fact] could have found the elements of the crime proved beyond a
reasonable doubt’ ” (People v Danielson, 9 NY3d 342, 349).

     Contrary to defendant’s further contention, viewing the evidence
in light of the elements of the crime in this nonjury trial (see id.),
we conclude that the verdict is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495; People v Campbell,
98 AD3d 1310, 1311-1312). It is well settled that “[g]reat deference
is to be accorded to the fact []finder’s resolution of credibility
issues based upon its superior vantage point and its opportunity to
view witnesses, observe demeanor and hear the testimony” (People v
Aikey, 94 AD3d 1485, 1486, lv denied 19 NY3d 956 [internal quotation
marks omitted]; see People v Curry, 82 AD3d 1650, 1651, lv denied 17
NY3d 805). Here, the court specifically credited the victim’s
testimony, and we see no basis to disturb that determination (see
People v Newman, 87 AD3d 1348, 1350, lv denied 18 NY3d 926). The
evidence established that the victim called 911 within minutes after
the robbery occurred and told the dispatcher that she knew the
perpetrator. The victim sounded upset in the recording of the call,
and her description of the robbery to the 911 dispatcher was
consistent with her account at trial. Additionally, when the victim
saw defendant two days after the robbery, she recorded his license
plate number and promptly called the police. She then provided the
police with a statement and a drawing of what the court described as
“an unusual looking gun.” A gun, which was similar in appearance to
the gun described by the victim, was subsequently recovered by the
police in connection with an unrelated investigation and was later
linked to defendant through DNA evidence. With respect to the
victim’s criminal history, “[t]he fact that [she] had an unsavory
background . . . [does] not render [her] testimony incredible” (People
v Bernard, 100 AD3d 916, 916-917; see People v Wellborn, 82 AD3d 1657,
1658, lv denied 17 NY3d 803). Further, while the victim was the only
eyewitness to the robbery, it is well established that “the testimony
of one witness can be enough to support a conviction” (People v
Calabria, 3 NY3d 80, 82; see People v Jackson, 8 NY3d 869, 870; People
v Arroyo, 54 NY2d 567, 578, cert denied 456 US 979), and several
aspects of the victim’s account were corroborated by the testimony of
other witnesses as well as the DNA evidence (see People v Hurlbert, 81
AD3d 1430, 1431-1432, lv denied 16 NY3d 896).
                                 -3-                           111
                                                         KA 11-00447

     We also reject the contention of defendant that he was denied
effective assistance of counsel. Although defense counsel’s
performance was not perfect, we conclude that, “[v]iewing the
evidence, the law and the circumstances of this case, in totality and
as of the time of the representation, . . . defendant received
meaningful representation” (People v Hildreth, 86 AD3d 917, 918; see
generally People v Baldi, 54 NY2d 137, 147). Defense counsel, inter
alia, opposed the People’s application for a buccal swab, made a bail
application, vigorously cross-examined the People’s witnesses, gave
cogent opening and closing statements, moved for a trial order of
dismissal, and moved to set aside the verdict pursuant to CPL 330.30.
Through his cross-examination of the People’s witnesses and his
opening and closing statements, defense counsel suggested that the
victim fabricated the robbery either in an effort to retain the money
for herself or in furtherance of a vendetta against defendant, which
was “a reasonable trial strategy in the face of strong opposing
evidence” (People v Penwarden, 258 AD2d 902, 902; see People v Jordan,
99 AD3d 1109, 1110). In furtherance of that strategy, he attacked the
victim’s veracity and the credibility of the People’s other witnesses,
challenged the significance of the DNA evidence, and questioned the
adequacy of the police investigation into the robbery.

     Finally, the sentence is not unduly harsh or severe, particularly
given defendant’s lengthy criminal history, the serious nature of the
crime, and defendant’s use of a semi-automatic assault weapon.




Entered:   February 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
