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

1268
KA 12-00762
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROY BRIGGS, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered June 17, 2011. The judgment
convicted defendant, upon a jury verdict, of burglary in the second
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 burglary in the second degree (Penal Law § 140.25 [2]),
defendant contends that Supreme Court erred in refusing to suppress a
statement he made to the police because he invoked his right to
counsel before the statement was made and because the statement was
obtained through threats and coercion. We reject that contention.
The police officer who questioned defendant testified that defendant
waived his Miranda rights and agreed to speak with him; he did not
recall defendant requesting an attorney; and he did not threaten or
coerce defendant. The court did not credit defendant’s testimony to
the contrary at the suppression hearing. We accord great weight to
the determination of the suppression court “ ‘because of its ability
to observe and assess the credibility of the witnesses,’ ” and we
perceive no basis to disturb its determination (People v McConnell,
233 AD2d 867, 867, lv denied 89 NY2d 987; see People v Mateo, 2 NY3d
383, 414, cert denied 542 US 946; People v Coleman, 306 AD2d 941, 941,
lv denied 1 NY3d 596).

     Viewing the evidence in light of the elements of the crime as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s contention that the verdict is against the weight
of the evidence (see generally People v Bleakley, 69 NY2d 490, 495).
We likewise reject defendant’s further contention that he was denied
effective assistance of counsel. Defendant failed to demonstrate the
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                                                         KA 12-00762

absence of a strategic or other legitimate explanation for defense
counsel’s failure to object to certain evidence (see People v
Dombrowski, 94 AD3d 1416, 1417, lv denied 19 NY3d 959; see generally
People v Benevento, 91 NY2d 708, 712-713), and defense counsel’s
failure to move for a mistrial does not constitute ineffective
assistance because the motion would have had little to no chance of
success (see People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d
702). Finally, the sentence is not unduly harsh or severe.




Entered:   January 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
