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

925
KA 13-01483
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JESSIE MEDLEY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered June 11, 2013. The judgment convicted
defendant, upon a jury verdict, of robbery in the first 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 robbery in the first degree (Penal Law § 160.15
[3]), and criminal possession of a weapon in the third degree (§
265.02 [1]). Viewing the evidence in the light most favorable to the
People, as we must (see People v Williams, 84 NY2d 925, 926; People v
Contes, 60 NY2d 620, 621), we conclude that the evidence is legally
sufficient to support the conviction (see generally People v Bleakley,
69 NY2d 490, 495). Although there were some inconsistencies in the
victim’s testimony, she was steadfast in her account that defendant
robbed her while he had a knife in his hand and threatened to stab
her, and the jury was entitled to credit that testimony (see People v
Kelly, 34 AD3d 1341, 1342, lv denied 8 NY3d 847). In addition, a
surveillance video admitted in evidence depicts the victim backing
away from defendant’s outstretched hand, and a witness who responded
to the victim’s plea for help testified that defendant had something
in his hand and that the victim screamed that defendant had tried to
stab her. 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
likewise conclude that, although an acquittal would not have been
unreasonable, the verdict is not against the weight of the evidence
(see Bleakley, 69 NY2d at 495). We note that “[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
                                 -2-                           925
                                                         KA 13-01483

[internal quotation marks omitted]), and we perceive no reason to
disturb the jury’s resolution of those issues in this case.

     Although County Court initially overruled defendant’s objection
to certain portions of the hearsay testimony from the driver of the
bus from which defendant was apprehended, it thereafter gave the jury
a prompt curative instruction to “disregard what somebody else told
him[;] [t]hat’s not evidence.” Defendant did not object to that
instruction, nor did he object further or seek a mistrial, and he thus
failed to preserve for our review his further contention that
introduction of the testimony deprived him of his right to confront
the bus driver or his right to a fair trial (see People v Kello, 96
NY2d 740, 744). Under the circumstances, the court’s “instruction[]
must be deemed to have corrected the error to the defendant’s
satisfaction” (People v Heide, 84 NY2d 943, 944; People v Lane, 106
AD3d 1478, 1480-1481, lv denied 21 NY3d 1043). Defendant also
contends that the court erred in admitting alleged hearsay during the
testimony of two police witnesses. We reject that contention and
conclude that, “[e]ven assuming that this testimony conveyed an
implicit assertion by a nontestifying declarant, it was not received
for its truth, but as background evidence to complete the narrative of
events and explain why the officer[s] looked in the [back of the bus]”
(People v Newland, 6 AD3d 330, 330, lv denied 3 NY3d 679,
reconsideration denied 3 NY3d 759). Defendant failed to preserve for
our review his remaining contentions concerning his right of
confrontation and his right to a fair trial (see People v Irvin, 111
AD3d 1294, 1295, lv denied 24 NY3d 1044). We decline to exercise our
power to review those contentions as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]).

      Finally, we reject defendant’s remaining contention that he was
denied effective assistance of counsel owing to counsel’s failure to
raise certain arguments or make a certain motion inasmuch as such
arguments and motion had little or no chance of success (see People v
Caban, 5 NY3d 143, 152). We conclude that defendant received
meaningful representation (see generally People v Baldi, 54 NY2d 137,
147).




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