                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 5, 2015                     105528
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

KENNETH M. BRABHAM, Also Known
   as SKEET,
                    Appellant.
________________________________


Calendar Date:   January 15, 2015

Before:   Lahtinen, J.P., Garry, Devine and Clark, JJ.

                             __________


      John R. Trice, Elmira, for appellant, and appellant
pro se.

      Gerald F. Mollen, District Attorney, Binghamton (Brian
Leeds of counsel), for respondent.

                             __________


Garry, J.

      Appeal from a judgment of the County Court of Broome County
(Cawley, J.), rendered September 12, 2012, upon a verdict
convicting defendant of the crimes of burglary in the first
degree, attempted assault in the first degree and assault in the
second degree.

      Defendant and several other men allegedly entered the
victim's apartment without permission and assaulted him.
Defendant was indicted for burglary in the first degree,
attempted assault in the first degree and assault in the second
degree. He was convicted as charged by a jury and sentenced to
an aggregate prison term of 15 years followed by five years of
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postrelease supervision.   Defendant appeals.

      Defendant contends that his convictions are not supported
by legally sufficient evidence and are against the weight of the
evidence, asserting that the witness testimony against him was
not credible. Defendant moved to dismiss the charges on this
ground at the close of the People's case, but he did not renew
the motion following the close of all proof. Although his legal
sufficiency claim is therefore unpreserved (see People v Lane, 7
NY3d 888, 889 [2006]; People v Santiago, 118 AD3d 1163, 1164
[2014], lv denied 24 NY3d 964 [2014]), defendant's claim that the
verdict was against the weight of the evidence requires this
Court to examine the sufficiency of the evidence of each element
of the crimes (see People v Rowe, 105 AD3d 1088, 1090 n 2 [2013],
lv denied 21 NY3d 1019 [2013]; People v Mitchell, 94 AD3d 1252,
1253 n [2012], lv denied 19 NY3d 964 [2012]).

      The victim testified that he and defendant's paramour were
in his apartment when several men burst through the door,
including defendant, who was holding a gun. Defendant and the
other men beat the victim with various objects, including a
wooden rod or staff, an end table, a propane tank and a hard
object that the victim believed to be the butt of defendant's
gun. The victim testified that he crouched face down on his bed
during most of the assault, trying to protect himself and his
dog, but looked up once to see defendant – whom he had previously
met several times – hitting him in the head with the end table.
Another assailant hit him repeatedly with the rod, fracturing one
of his fingers. The rod and the end table, both of which were
broken during the attack, were admitted into evidence at trial.
The victim testified that the assault continued for about 20
minutes until one of the men said, "[H]e's leaking good, let's
get out of here," at which point the men left the apartment,
taking the paramour with them. When the victim left the
apartment in search of assistance, he saw four men "dragging" the
paramour away. He later identified defendant from a photograph,
but could not identify the other assailants.

      In addition to the broken finger, the victim sustained
multiple contusions and a laceration on his head, additional
contusions on his face, back, arms and hands, shoulder injuries
                              -3-                105528

and a large swollen bruise on his arm. He received medical
treatment that included stitches for the head wound, a sling for
the injured arm and physical therapy for the shoulder. He did
not regain full use of his arm for several months and, at the
time of trial, was still unable to move the broken finger.

      The victim and the paramour both testified that defendant
had previously warned them that the paramour was not allowed to
enter the victim's apartment; according to the victim, defendant
said during the assault, "[I] told you not to let [the paramour]
come in here." The paramour was reluctant to testify because of
her relationship with defendant, and did so only after she was
incarcerated pursuant to a warrant for her arrest as a material
and necessary witness. She confirmed the victim's testimony in
part, stating that she was present when defendant and three other
men entered the apartment without permission. She testified that
defendant had a gun, one of the other men had a "stick" and the
other three men beat the victim, but she stated that defendant
removed her from the apartment when the assault began and that
she did not see him strike the victim.

      Defendant challenges the credibility of the victim and the
paramour, pointing to such inconsistencies in their statements as
the conflict between the victim's claim that defendant
participated in the assault and the paramour's claim that he did
not do so. Defendant argues that the victim was unworthy of
belief because of his extensive criminal record and longstanding
history of drug abuse, and he challenges the credibility of the
paramour based upon her history of prostitution and drug abuse,
prior convictions for these activities and testimony that she had
previously traded sex for drugs with the victim. As defendant
contends, the victim's initial statements to police did not
include his later claims that defendant had a gun and that the
victim was struck with a propane tank. Moreover, the victim
acknowledged that he and the paramour had smoked crack together
in his apartment on the night before the assault, that he
continued to abuse drugs thereafter, and that he had last smoked
crack only a few days before the trial. However, he testified
that he was not under the influence of drugs when the assault
occurred nor at trial, and a police officer testified that the
victim was able to communicate clearly after the assault.
                              -4-                105528

      There were other inconsistencies in the victim's testimony,
such as his testimony at one point that three men entered the
apartment and at another point that the number was between two
and four. However, we reject defendant's argument that these
issues – all of which were thoroughly explored on cross-
examination – rendered the testimony unworthy of belief. The
testimony was not contradicted by any other compelling evidence
and cannot be considered incredible as a matter of law (see
People v Cridelle, 112 AD3d 1141, 1143 [2013]; People v Moyer, 75
AD3d 1004, 1006 [2010]). Instead, the conflicts and
inconsistencies in the testimony created "classic credibility
issue[s] for the jury to resolve" (People v Mitchell, 57 AD3d
1308, 1309 [2008] [internal quotation marks and citation
omitted]; accord People v McCray, 102 AD3d 1000, 1004 [2013],
affd 23 NY2d 193 [2014]). Viewing the evidence in a neutral
light and according deference to the jury's credibility
assessments, the verdict is supported by the weight of the
evidence as to all of the charged crimes (see People v Mateo, 101
AD3d 1458, 1459-1460 [2012], lv denied 21 NY3d 913 [2013]; People
v Dove, 89 AD3d 1153, 1153-1154 [2011], lv denied 18 NY3d 957
[2012]; People v Elliot, 299 AD2d 731, 733 [2002]).

      Defendant's representation at trial did not constitute the
ineffective assistance of counsel. As he contends, his counsel's
arguments in the trial motion to dismiss and in summation that
the victim did not sustain serious physical injury were
misguided, as no such showing is required to prove attempted
assault in the first degree (see People v Daniels, 97 AD3d 845,
847 [2012], lv denied 20 NY3d 931 [2012]; People v Gray, 30 AD3d
771, 773 [2006], lv denied 7 NY3d 848 [2006]). Moreover, defense
counsel was unsuccessful in using a defense witness to impeach
defendant's testimony as to the number of assailants because he
had not established the necessary foundation, although he did
impeach the victim's testimony through other means (compare
People v Rodriguez, 48 AD3d 312, 312 [2008], lv denied 10 NY3d
939 [2008]).

      "The Constitution guarantees a defendant a fair trial, not
a perfect one," and isolated errors do not ordinarily constitute
ineffective assistance unless they are so grievous as to amount
to a deprivation of the constitutional right to a fair trial
                              -5-                105528

(People v Henry, 95 NY2d 563, 565-566 [2000] [citation omitted];
see People v Shuaib, 111 AD3d 1055, 1057 [2013], lv denied 24
NY3d 1046 [2014]). The cited errors were not so egregious as to
rise to that level, and defendant's remaining challenges to his
counsel's performance do not establish ineffective assistance.
Defendant claims that his counsel should have objected to certain
allegedly improper remarks during the prosecutor's summation, but
we find nothing in the challenged comments that was "so
prejudicial to defendant as to render counsel's failure to object
to them evidence of ineffective assistance of counsel" (People v
Albanese, 38 AD3d 1015, 1019 [2007], lv denied 8 NY3d 981 [2007];
accord People v Fisher, 89 AD3d 1135, 1139 [2011], lv denied 18
NY3d 883 [2012]).

      The issues raised in defendant's pro se brief with regard
to counsel's failure to obtain fingerprints or object to the
manner in which defendant was transported to court involve
matters outside the record that are more properly addressed in a
motion pursuant to CPL article 440 (see People v Carlton, 120
AD3d 1443, 1445 [2014]; People v Willi, 80 AD3d 884, 885 [2011],
lv denied 16 NY3d 900 [2011]). Defense counsel made appropriate
motions and evidentiary objections, pursued a reasonable theory
of defense, cross-examined witnesses effectively and presented
cogent opening and closing statements. Viewing the record as a
whole, we find that defendant received meaningful representation
(see People v Green, 108 AD3d 782, 786 [2013], lv denied 21 NY3d
1074 [2013]; People v Race, 78 AD3d 1217, 1221 [2010], lv denied
16 NY3d 835 [2011]).

      Finally, we reject defendant's contention that his
sentence, which was less than the maximum that he could have
received, was harsh and excessive. In view of defendant's
criminal history and the violent nature of his actions, we
perceive no abuse of discretion or extraordinary circumstances
warranting a modification (see People v Burgette, 118 AD3d 1034,
1035 [2014], lv denied 24 NY3d 961 [2015]; People v Jones, 114
AD3d 1080, 1082 [2014], lv denied 24 NY3d 961 [2014]).
Defendant's remaining contentions, including those in his pro se
brief, have been reviewed and found to be without merit.
                        -6-                  105528

Lahtinen, J.P., Devine and Clark, JJ., concur.



ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
