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

886
KA 10-01366
PRESENT: SMITH, J.P., FAHEY, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MAURICE COTTON, DEFENDANT-APPELLANT.


KEVIN J. BAUER, ALBANY, FOR DEFENDANT-APPELLANT.

MAURICE COTTON, DEFENDANT-APPELLANT PRO SE.

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


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered June 10, 2010. The judgment convicted
defendant, upon a jury verdict, of attempted murder in the second
degree, assault in the first degree and criminal possession of a
weapon in the second 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 attempted murder in the second degree (Penal
Law §§ 110.00, 125.25 [1]), assault in the first degree (§ 120.10
[1]), and criminal possession of a weapon in the second degree (§
265.03 [1] [b]). In his main brief, defendant contends that the
verdict is contrary to the weight of the evidence, primarily based
upon his contention that the victim was not credible, and he also asks
us to review the legal sufficiency of the evidence as part of our
weight of the evidence review. In his pro se supplemental brief,
defendant contends that the evidence is legally insufficient to
support the conviction. Defendant failed to renew his motion for a
trial order of dismissal after presenting evidence, and thus failed to
preserve his sufficiency challenge for our review (see People v Lane,
7 NY3d 888, 889; People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d
678). In any event, viewing the evidence in the light most favorable
to the People (see People v Williams, 84 NY2d 925, 926), we conclude
that it is legally sufficient to support the conviction of the crimes
charged (see generally People v Bleakley, 69 NY2d 490, 495).
Furthermore, viewing the evidence in light of the elements of the
crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we also conclude that the verdict is not against the weight of
the evidence (see generally Bleakley, 69 NY2d at 495). “[R]esolution
                                 -2-                           886
                                                         KA 10-01366

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]; see People v Mulligan, 118 AD3d
1372, 1375), and, based upon our independent review of the evidence
and the credibility of the witnesses, we see no reason to disturb the
jury’s determination.

     We agree with defendant’s further contention in his pro se
supplemental brief that he should not have been shackled when he
testified before the grand jury, but we conclude that reversal based
on that error is not warranted. “As the People correctly contend, the
prosecutor’s cautionary instructions to the grand jurors, which
forbade them from drawing any negative inferences from the shackling,
‘were sufficient to dispel any potential prejudice’ to defendant”
(People v Burroughs, 108 AD3d 1103, 1106, lv denied 22 NY3d 995; see
People v Gilmore, 12 AD3d 1155, 1155). Insofar as defendant’s pro se
supplemental brief may be read to challenge the sufficiency of the
evidence before the grand jury, we note that such challenge is not
properly before us. “It is well established that ‘[t]he validity of
an order denying any motion [to dismiss an indictment for legal
insufficiency of the grand jury evidence] is not reviewable upon an
appeal from an ensuing judgment of conviction based upon legally
sufficient trial evidence’ ” (People v Afrika, 79 AD3d 1678, 1679, lv
denied 17 NY3d 791, quoting CPL 210.30 [6]; see People v Lane, 106
AD3d 1478, 1481, lv denied 21 NY3d 1043). Similarly, “[b]ecause his
convictions are supported by legally sufficient trial evidence,
defendant’s challenges to . . . the instructions given during [the
grand jury] proceeding are precluded” (People v Medeiros, 116 AD3d
1096, ____ n 1).

     Also in his pro se supplemental brief, defendant contends that
Supreme Court committed reversible error in permitting two witnesses
to bolster the victim’s prior identification of defendant. That
contention is not preserved for our review because, “[a]lthough a
[hearsay objection] was raised against this testimony, defendant at no
time objected to this testimony on the specific ground that it
constituted improper bolstering” (People v West, 56 NY2d 662, 663; see
People v Comerford, 70 AD3d 1305, 1306; see also People v Jacque, 2
AD3d 1362, lv denied 2 NY3d 741). 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]).

     We reject defendant’s further contention in his pro se
supplemental brief that he was denied effective assistance of counsel,
inasmuch as he failed to “ ‘demonstrate the absence of strategic or
other legitimate explanations’ for counsel’s allegedly deficient
conduct” (People v Caban, 5 NY3d 143, 152; see People v Coleman, 37
AD3d 489, 490, lv denied 9 NY3d 864; see generally People v Benevento,
91 NY2d 708, 712).

     The sentence is not unduly harsh or severe. Finally, we have
considered the remaining contentions in defendant’s pro se
                                 -3-                           886
                                                         KA 10-01366

supplemental brief and conclude that they are without merit.




Entered:   September 26, 2014                   Frances E. Cafarell
                                                Clerk of the Court
