PEOPLE v. THOMAS (2011)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered February 23, 2010, convicting him of rape in the first degree (six counts), burglary in the first degree (five counts), criminal sexual act in the first degree (five counts), robbery in the first degree (three counts), burglary in the second degree (two counts), and robbery in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the defendant's claim that his due process and fair trial rights were violated by the failure of police to record his interrogation on video was sufficiently preserved for appellate review (see CPL 470.05[2] ). However, the defendant's claim in this regard is without merit (see People v. Cass, 79 AD3d 768, 769, lv granted 17 NY3d 793; People v. Rodriguez, 68 AD3d 789, 789; People v. Hodges, 58 AD3d 642, 642; People v. Boyd, 21 AD3d 1428, 1429; People v. Falkenstein, 288 A.D.2d 922, 923).

The defendant's contention that the evidence was legally insufficient to establish his guilt of burglary in the first degree and burglary in the second degree is unpreserved for appellate review (see CPL 470.05[2] ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621), we find that, contrary to the defendant's contention, it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt, with respect to the charges of burglary in the first degree and burglary in the second degree (see Penal Law §§ 140.25, 140.30; People v. Romero, 78 AD3d 740, 741; People v. Washington, 26 AD3d 400, 400). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410, cert denied 542 U.S. 946; People v. Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt with respect to the counts of burglary in the first degree and burglary in the second degree was not against the weight of the evidence (see People v. Romero, 7 NY3d 633). The evidence demonstrated, beyond a reasonable doubt, inter alia, that the defendant knowingly entered the respective buildings unlawfully.

The defendant's contention that he was deprived of the effective assistance of counsel based on his attorney's failure to seek dismissal of the charges of burglary in the first degree and burglary in the second degree is without merit (see generally Strickland v. Washington, 466 U.S. 668; People v. Henry, 95 N.Y.2d 563, 565–566). “A defendant is not denied effective assistance of trial counsel merely because counsel does not make a motion or argument that has little or no chance of success” (People v. Stultz, 2 NY3d 277, 287; see People v. Caban, 5 NY3d 143, 152).