PEOPLE v. GREY

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. John GREY, appellant.

Decided: November 28, 2006

THOMAS A. ADAMS, J.P., REINALDO E. RIVERA, PETER B. SKELOS, and ROBERT A. LIFSON, JJ. Mischel & Horn, P.C., New York, N.Y. (Richard E. Mischel of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Delayne Austin of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Spires, J.), rendered January 5, 1999, convicting him of burglary in the second degree, criminal impersonation in the first degree, petit larceny, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant contends that the verdict of guilt was against the weight of the evidence because the testimony of the prosecution's eyewitness was unreliable.   Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions that are to be determined by the jury, who saw and heard the witnesses testify (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112;  People v. Highsmith, 21 A.D.3d 1037, 1038, 801 N.Y.S.2d 355).   The jury was able to weigh the strength of the conflicting testimony before it, and it gave the eyewitness' testimony its due weight (see People v. Hart, 8 A.D.3d 402, 405, 778 N.Y.S.2d 94).   Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Regan, 11 A.D.3d 640, 782 N.Y.S.2d 683).

 The defendant's contention that he was denied the effective assistance of counsel is without merit.   To establish a claim of ineffective assistance of counsel, proof of less than meaningful representation is required, rather than mere disagreement with counsel's strategies and tactics (see People v. Henry, 95 N.Y.2d 563, 565-66, 721 N.Y.S.2d 577, 744 N.E.2d 112).   Generally, “the issue is whether counsel's performance ‘viewed in totality’ amounts to ‘meaningful representation’ ” (People v. Turner, 5 N.Y.3d 476, 480, 806 N.Y.S.2d 154, 840 N.E.2d 123, quoting People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  see also People v. Schulz, 4 N.Y.3d 521, 531, 797 N.Y.S.2d 24, 829 N.E.2d 1192).   The defendant failed to show that there were no strategic or other legitimate explanations for his trial counsel's decisions (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584).

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