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

1058
KA 09-00789
PRESENT: SCUDDER, P.J., SMITH, FAHEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GLEN DAVIS, ALSO KNOWN AS THOMAS DAVIS,
DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

GLEN DAVIS, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered March 4, 2009. The judgment convicted
defendant, upon a jury verdict, of murder 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 affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of murder in the second degree (Penal Law § 125.25
[1]) and criminal possession of a weapon in the third degree (§ 265.02
[former (4)]). Viewing the evidence in light of the elements of
murder in the second degree 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 with respect to that crime (see
generally People v Bleakley, 69 NY2d 490, 495). “[R]esolution of
issues of credibility, as well as the weight to be accorded to the
evidence presented, are primarily questions to be determined by the
jury” (People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942
[internal quotation marks omitted]). Defendant’s further contention
that County Court erred in failing to charge the jury on justification
with respect to ordinary physical force, as opposed to deadly physical
force, is not preserved for our review (see People v Carr, 59 AD3d
945, 946, affd 14 NY3d 808; People v Johnson, 103 AD3d 1226, 1226, lv
denied 21 NY3d 944). In any event, that contention lacks merit.
Inasmuch as “the charge against defendant required proof of his use of
deadly physical force, the court properly instructed the jury on
deadly physical force as part of defendant’s justification defense”
(People v Davis, 118 AD2d 206, 210, lv denied 68 NY2d 768). Contrary
                                 -2-                          1058
                                                         KA 09-00789

to the contention of defendant in his pro se supplemental brief,
defense counsel was not ineffective in failing to seek an instruction
with respect to ordinary physical force because 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, quoting People v Stultz, 2 NY3d 277, 287, rearg
denied 3 NY3d 702; see Johnson, 103 AD3d at 1226).

     Defendant’s remaining contentions are in his main brief and
concern the court’s preclusionary rulings. None of those contentions
requires reversal or modification of the judgment of conviction.

     First, defendant contends that the court erred in precluding
defendant from testifying that over one month before the murder he and
the victim had an exchange in which the victim asked defendant why
defendant was “clocking,” i.e., watching, the victim. Although
defendant contends that such statement could be considered a threat,
we conclude that “[i]t was within the court’s discretion to preclude
[that testimony] as too speculative or conjectural to be presented to
the jury” (People v Parks, 85 AD3d 557, 557-558, lv denied 17 NY3d
904).

     Second, defendant contends that he was thwarted in his efforts to
explain his fear of the victim when the court refused to allow him to
testify as to what two associates of the victim had told defendant
about leaving the apartment building in which defendant resided. Even
assuming, arguendo, that defendant preserved his contention for our
review, we conclude that any error in precluding defendant from
testifying on this point is harmless (see generally People v Crimmins,
36 NY2d 230, 241-242). We note in particular that “the precluded
testimony was essentially cumulative of other evidence presented at
trial” and that “defendant was provided a meaningful opportunity to
present a complete defense” (People v Ramsey, 59 AD3d 1046, 1048, lv
denied 12 NY3d 858 [internal quotation marks omitted]). Here,
defendant testified that a competing drug dealer known to defendant
had been shot by the victim, that the victim and associates of the
victim had severely beaten defendant, and that the victim had
frightened defendant and defendant’s girlfriend into moving from the
apartment building in which they resided.

     Third, defendant contends that the court erred in refusing to
allow him to explain his state of mind in returning to the apartment
building from which he had previously moved on the day of the
shooting. The court did not in fact preclude such testimony, however,
inasmuch as the court permitted defendant to testify that he did not
anticipate the presence of the victim or the victim’s associates on
the morning of the shooting.




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