                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 16, 2015                    104662
________________________________

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

WILLIAM A. BROOKS JR.,
                    Appellant.
________________________________


Calendar Date:   February 18, 2015

Before:   Peters, P.J., Lahtinen, Garry and Lynch, JJ.

                             __________


     Lance N. Salisbury, Ithaca, for appellant.

      Weeden A. Wetmore, District Attorney, Elmira (Damian M.
Sonsire of counsel), for respondent.

                             __________



Peters, P.J.

      Appeal from a judgment of the County Court of Chemung
County (Hayden, J.), rendered February 15, 2011, upon a verdict
convicting defendant of the crimes of attempted robbery in the
second degree, attempted criminal possession of a controlled
substance in the third degree and petit larceny.

      Following a jury trial, defendant was convicted of
attempted robbery in the second degree, attempted criminal
possession of a controlled substance in the third degree and
petit larceny. He now appeals, arguing that the verdict was not
supported by legally sufficient evidence and was against the
                                -2-                104662

weight of the evidence.1   Finding neither argument persuasive, we
affirm.

      At trial, the victim testified that, on the afternoon of
July 25, 2010, she went to a residence in the City of Elmira,
Chemung County, where she knew crack cocaine was being sold.
While there, defendant "fronted" her several bags of crack
cocaine, which she thereafter smoked over the course of several
hours, upon her assurances that she had money at her apartment to
pay for the drugs. The victim explained that, at some point in
the evening, defendant and another began demanding payment for
the drugs and then forcibly removed her from the residence,
dragged her off of the premises and pushed her into defendant's
vehicle, all while repeatedly telling her that they were going to
her apartment to get the money. Upon arriving at the victim's
apartment and learning that she did not have the money, defendant
threatened to physically assault her and demanded that she call
someone to bring her the money. The victim complied and
contacted her paramour who, in turn, contacted the police.
Defendant and the other individual then proceeded to ransack the
entire apartment in a search for money and items of value.
According to the victim, the other individual brandished a weapon
at one point and both continued to threaten her throughout that
time. Police ultimately arrived at the scene and, following
several controlled phone calls between the victim and her
paramour, the victim exited the residence and was taken into
custody. Officers thereafter entered the apartment and arrested
defendant, who was situated in close proximity to what appeared
to be a handgun. Upon a search of defendant's vehicle following
his arrest, several items from the victim's residence were
discovered therein.

      Viewed in the light most favorable to the People (see
People v Gordon, 23 NY3d 643, 649 [2014]; People v Charles, 124


     1
        By making a particularized trial motion to dismiss
directed at the specific deficiencies now claimed on appeal,
defendant preserved his legal sufficiency claim for our review
(see People v Carncross, 14 NY3d 319, 324-325 [2010]; People v
Gray, 86 NY2d 10, 19 [1995]).
                              -3-                104662

AD3d 986, 987 [2015]), this evidence was legally sufficient to
support defendant's convictions (see Penal Law §§ 110.00, 155.25,
160.10 [1]; 220.16 [1]; People v Djanie, 31 AD3d 887, 887 [2006],
lv denied 7 NY3d 866 [2006]; People v Zabala, 290 AD2d 578, 578
[2002], lv denied 97 NY2d 735 [2002]). Defendant does not
dispute that evidence on each of the elements of the crimes for
which he was convicted was supplied through the trial testimony
of the victim, but instead maintains that the victim's testimony
was incredible as a matter of law.2 At trial, the victim
recounted her criminal history and longstanding struggles with
drug abuse, which included several inpatient treatment programs
and relapses of usage, and was admittedly "pretty high" from her
"binge" and experiencing symptoms of withdrawal – such as
paranoia – while defendant was at her apartment. Furthermore, as
defendant contends, there were several inconsistencies and
contradictions in the victim's testimony, and portions of her
testimony were questionable. However, these issues were fully
developed at trial and highlighted to the jury, and the victim's
testimony was not contradicted by any compelling evidence offered
by defendant so as to render it unworthy of belief or "establish
a basis upon which to disturb the jury's resolution of these
credibility issues" (People v Mitchell, 57 AD3d 1308, 1309 [2008]
[internal quotation marks, brackets and citations omitted]; see
People v Brabham, 126 AD3d 1040, ___, 2015 NY Slip Op 01833, *1-2
[2015]; People v Wingo, 103 AD3d 1036, 1037 [2013], lv denied 21
NY3d 1021 [2013]; People v Moyer, 75 AD3d 1004, 1006 [2010]).
Further, after independently weighing the evidence and
considering it in a neutral light, while according deference to


    2
        To the extent that defendant also argues that, absent
corroborating evidence, the victim's testimony was insufficient
to prove that the substance he allegedly possessed was, in fact,
cocaine, we need only note that the existence of a controlled
substance is not an element of the crime of attempted criminal
possession of a controlled substance in the third degree (see
Penal Law §§ 110.00, 220.16 [1]; see also People v Alameen, 264
AD2d 937, 938 [1999], lv denied 94 NY2d 819 [1999]; People v
Sessions, 181 AD2d 842, 843 [1992], lv denied 80 NY2d 837 [1992];
compare People v Martin, 81 AD3d 1178, 1180 [2011], lv denied 17
NY3d 819 [2011]).
                              -4-                  104662

the jury's superior ability to evaluate credibility (see People v
Danielson, 9 NY3d 342, 349 [2007]; People v Bleakley, 69 NY2d
490, 495 [1987]; People v Robinson, 117 AD3d 1099, 1101 [2014],
lvs denied 23 NY3d 1059, 1066 [2014]), we cannot say that the
verdict was contrary to the weight of the evidence.

     Lahtinen, Garry and Lynch, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
