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

562
KA 11-01413
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MOHAMED A. MOHAMED, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered March 28, 2011. The judgment convicted
defendant, upon a jury verdict, of assault 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 following a
jury verdict of assault in the second degree (Penal Law § 120.05 [2]),
defendant contends that the conviction is not supported by legally
sufficient evidence. As defendant correctly concedes, his challenge
to the legal sufficiency of the evidence is not preserved for our
review because he failed to renew his motion for a trial order of
dismissal at the close of his proof (see People v Hines, 97 NY2d 56,
61, rearg denied 97 NY2d 678). In any event, his contention lacks
merit.

     Defendant does not dispute that the victim sustained physical
injuries after he was assaulted with a blunt object by two men.
Defendant also does not dispute that one of the two assailants was his
brother. The only issue at trial was the identity of the second
assailant. The victim was unable to identify the second assailant,
testifying on the issue of identity only that the two assailants spoke
to each other in Arabic. The prosecution, however, offered the
testimony of an accomplice, defendant’s former girlfriend. She
testified that, earlier on the night of the assault, defendant and his
brother had been involved in a bar fight with the victim and friends
of the victim, following which defendant’s brother sustained injuries.
The accomplice testified that she left the bar with defendant and his
brother. The two men asked her to invite the victim, with whom she
was familiar, to her house. Once the victim arrived, defendant and
his brother assaulted the victim.
                                 -2-                           562
                                                         KA 11-01413

     Contrary to defendant’s contention, the accomplice’s testimony
was sufficiently corroborated. “ ‘[C]orroborative evidence need not
show the commission of the crime; it need not show that defendant was
connected with the commission of the crime. It is enough if it tends
to connect the defendant with the commission of the crime in such a
way as may reasonably satisfy the jury that the accomplice is telling
the truth’ ” (People v Reome, 15 NY3d 188, 191-192). Numerous
prosecution witnesses testified concerning the bar fight between the
two groups of men. In addition, the accomplice’s cousin testified
that she saw the accomplice leave the bar with defendant and his
brother shortly before the assault occurred. Telephone records
establish that the accomplice contacted the victim several times
shortly before the assault occurred. We thus conclude that there was
sufficient evidence “ ‘to connect the defendant with the commission of
the crime’ ” (id. at 192).

     We likewise reject defendant’s contention that the verdict is
against the weight of the evidence. Any inconsistencies in the
testimony did not render the accomplice’s testimony “incredible and
unbelievable, that is, impossible of belief because it [was]
manifestly untrue, physically impossible, contrary to experience, or
self-contradictory” (People v Wallace, 306 AD2d 802, 802-803
[internal quotation marks omitted]; see People v Young, 55 AD3d 1234,
1235-1236, lv denied 11 NY3d 901). Furthermore, “[w]here, as here,
witness credibility is of paramount importance to the determination of
guilt or innocence, the appellate court must give ‘[g]reat deference .
. . [to the jury’s] opportunity to view the witnesses, hear the
testimony and observe demeanor’ ” (People v Harris, 15 AD3d 966, 967,
lv denied 4 NY3d 831, quoting People v Bleakley, 69 NY2d 490, 495; see
People v Kilbury, 83 AD3d 1579, 1580, lv denied 17 NY3d 860).

      The entire case rested on whether the jury credited the testimony
of the accomplice and her cousin, which placed defendant with his
brother at all relevant times that evening. “[A]lthough a finding
that defendant was not the [second assailant] would not have been
unreasonable given the lack of physical evidence and the questionable
reliability of the [accomplice] who implicated defendant, it cannot be
said that the jury failed to give the evidence the weight it should be
accorded” (People v McMillon, 77 AD3d 1375, 1376, lv denied 16 NY3d
897).

     Viewing the evidence, the law and the circumstances of this case,
in totality and as of the time of the representation, we reject
defendant’s contention that he was denied effective assistance of
counsel (see generally People v Flores, 84 NY2d 184, 187; People v
Baldi, 54 NY2d 137, 147), and we further conclude that the sentence is
not unduly harsh or severe.




Entered:   April 20, 2012                       Frances E. Cafarell
                                                Clerk of the Court
