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

The PEOPLE, etc., respondent, v. Diya J. PEARSALL, appellant.


Decided: April 17, 2019

JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ. Leon H. Tracy, Jericho, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Kevin C. King and James C. Manning of counsel), for respondent.


ORDERED that the judgment is affirmed.

The defendant's contention that his conviction is not supported by legally sufficient evidence is unpreserved for appellate review, as his motion to dismiss made at the close of evidence was not sufficiently specific (see CPL 470.05[2];  People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).  In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.  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 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), 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 N.Y.3d 383,410, 779 N.Y.S.2d 399, 811 N.E.2d 1053).  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, his trial counsel's failure to preserve for appellate review his challenge to the legal sufficiency of the evidence did not constitute ineffective assistance of counsel (see People v. McGee, 20 N.Y.3d 513, 518, 964 N.Y.S.2d 73, 986 N.E.2d 907;  People v. Foster, 153 A.D.3d 853, 855, 60 N.Y.S.3d 372).  In addition, counsel's failure to seek an adverse inference charge did not constitute ineffective assistance of counsel (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).


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