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

1041
KA 10-02080
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SAMUEL L. JACKSON, JR., DEFENDANT-APPELLANT.


EFTIHIA BOURTIS, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered July 28, 2010. The judgment convicted
defendant, upon a jury verdict, of robbery 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 robbery in the second degree (Penal Law §
160.10 [2] [b]), arising from an incident in which he refused to pay a
prostitute the agreed-upon price for a sex act and then stole money
from her by threatening her with what appeared to be a handgun, but
was established to be a pellet gun. We reject defendant’s contention
that the verdict is against the weight of the evidence based on, inter
alia, the complainant’s lack of credibility. We agree with defendant
that, “based on all the credible evidence a different finding would
not have been unreasonable” (People v Bleakley, 69 NY2d 490, 495).
Viewing the evidence in light of the elements of the crime as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), however, we
conclude that the jury did not fail to give the evidence the weight it
should be accorded. “ ‘[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 West, 118 AD3d
1450, 1451-1452, lv denied 24 NY3d 1048), and we see no reason to
disturb the jury’s determination of those issues in this case.

     We reject defendant’s further contention that he was denied
effective assistance of counsel. Insofar as defendant’s contention is
based on his trial attorney’s failure to file a speedy trial motion,
that contention is without merit. The record establishes that the
People declared their readiness for trial within five months of the
commencement of the proceeding, and there is no indication of any
additional time that is chargeable to the People. Thus, any CPL 30.30
                                 -2-                             1041
                                                            KA 10-02080

motion would have been without merit (see CPL 30.30 [1] [a]), and
defendant was not “denied effective assistance of trial counsel merely
because counsel [did] not make a motion or argument that [had] little
or no chance of success” (People v Joslyn, 103 AD3d 1254, 1256, lv
denied 21 NY3d 944 [internal quotation marks omitted]; see People v
Barksdale, 129 AD3d 1497, 1498). With respect to defendant’s
contention that his attorney was ineffective in failing to seek
immunity for a prosecution witness, we note that, “ ‘[p]ursuant to CPL
50.30, the trial court may confer immunity to witnesses in a criminal
proceeding only when expressly requested to do so by the District
Attorney’ ” (People v Bolling, 24 AD3d 1195, 1196, affd 7 NY3d 874).
Here, the prosecutor made no such request, and defendant’s contention
lacks merit insofar as defendant contends that defense counsel should
have “demanded” that the prosecutor make such a request. In order
“[t]o prevail on a claim of ineffective assistance of counsel, it is
incumbent on defendant to demonstrate the absence of strategic or
other legitimate explanations” for defense counsel’s allegedly
deficient conduct (People v Rivera, 71 NY2d 705, 709; see People v
Benevento, 91 NY2d 708, 712), and defendant failed to meet that burden
here (see People v Holland, 126 AD3d 1514, 1515, lv denied 25 NY3d
1165; People v Torres, 125 AD3d 1481, 1482-1483, lv denied 25 NY3d
1172). Based upon our examination of the entire record, we conclude
that “the evidence, the law, and the circumstances of [the] case,
viewed in totality and as of the time of the representation, reveal
that the attorney provided meaningful representation” (People v Baldi,
54 NY2d 137, 147).

     The sentence is not unduly harsh or severe.




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