PEOPLE v. STONESCO (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Michael Aloise, J.), rendered December 15, 2015, convicting him of attempted burglary in the second degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant failed to preserve for appellate review his challenge to the legal sufficiency of the evidence supporting his conviction of attempted burglary in the second degree on the ground that his intent to commit the crime was not established (see CPL 470.05[2] ).  In any event, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of attempted burglary in the second degree beyond a reasonable doubt.

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the fact-finder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).  Contrary to the defendant's contention, the acquittal on those counts of the indictment which alleged crimes committed inside the complainant's apartment did not undermine the weight and sufficiency of the evidence supporting his conviction of attempted burglary in the second degree (see People v. Ehikhamenor, 72 A.D.3d 700, 700–701, 900 N.Y.S.2d 90;  People v. Andolina, 23 A.D.3d 573, 805 N.Y.S.2d 399).

The defendant's contention that the trial court improperly considered attempted burglary in the second degree as a lesser included offense of burglary in the second degree is not preserved for appellate review (see CPL 470.05[2];  People v. Leftwich, 155 A.D.2d 557, 547 N.Y.S.2d 585).  In any event, the contention is without merit (see People v. Lopez, 277 A.D.2d 397, 397, 716 N.Y.S.2d 882).

Finally, the defendant was not denied the effective assistance of counsel by trial counsel's failure to object to the Supreme Court's consideration of the lesser-included offense.  “There can be no denial of effective assistance of trial counsel arising from counsel's failure to ‘make a motion or argument that has little or no chance of success’ ” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213, quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883).  Moreover, the defendant was, in all respects, afforded meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

MASTRO, J.P., CHAMBERS, SGROI and MALTESE, JJ., concur.