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part of defendant’s motion for summary judgment dismissing the unjust


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part of defendant’s motion for summary judgment dismissing the unjust
enrichment cause of action, alleging that defendant in her individual
capacity was enriched at plaintiff’s expense based upon a presentation
that it gave to defendant’s creditors.  We reject that contention. 
“ ‘A cause of action for unjust enrichment requires a showing that (1)
the defendant was enriched, (2) at the expense of the plaintiff, and
(3) that it would be inequitable to permit the defendant to retain
that which is claimed by the plaintiff . . . The essence of such a
cause of action is that one party is in possession of money or
property that rightly belongs to another’ ” (Hayward Baker, Inc. v
C.O. Falter Constr. Corp., 104 AD3d 1253, 1255).  Here, defendant met
her initial burden by submitting her affidavit in which she averred
that she negotiated resolutions with the subject creditors through
counsel and paid the debts by agreement without any contribution from
plaintiff.  Plaintiff failed to raise a triable issue of fact inasmuch
as its submissions in opposition to the motion provide only conclusory
and vague statements that defendant benefitted from plaintiff’s
involvement with the creditors, and plaintiff has asserted no facts
suggesting that defendant was in possession of money belonging to it
(see id.; Clifford R. Gray, Inc. v LeChase Constr. Servs., LLC, 31
AD3d 983, 987-988).
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1243    
CA 15-02079  
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, AND SCUDDER, JJ.    
                                                            
                                                            
WILLIAM E. HAMILTON, PLAINTIFF-APPELLANT,                   
                                                            
V
ORDER
                                                            
BOARD OF EDUCATION OF JORDAN-ELBRIDGE CENTRAL 
SCHOOL DISTRICT, MARY L. ALLEY, DIANA M. FOOTE, 
JEANNE E. PIEKLIK, PENNY L. FEENEY, CONSTANCE E. 
DRAKE, SUSAN A. GORTON, PAULA L. VANMINOS, 
LAWRENCE J. ZACHER, JAMES R. FROIO, DANNY L.   
MEVEC, ALICIA A. MATTIE AND MARY MADONNA,                      
DEFENDANTS-RESPONDENTS. 
                                    
O’HARA, O’CONNELL & CIOTOLI, FAYETTEVILLE (STEPHEN CIOTOLI OF
COUNSEL), FOR PLAINTIFF-APPELLANT.   
BOND, SCHOENECK & KING, PLLC, SYRACUSE (BRIAN J. BUTLER OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS BOARD OF EDUCATION OF JORDAN-ELBRIDGE
CENTRAL SCHOOL DISTRICT, MARY L. ALLEY, DIANA M. FOOTE, JEANNE E.
PIEKLIK, PENNY L. FEENEY, CONSTANCE E. DRAKE, SUSAN A. GORTON, PAULA
L. VANMINOS, LAWRENCE J. ZACHER, JAMES R. FROIO, ALICIA A. MATTIE AND
MARY MADONNA.  
DANNY L. MEVEC, SYRACUSE, DEFENDANT-RESPONDENT PRO SE.                 
                                                      
Appeal from an order and judgment (one paper) of the Supreme
Court, Onondaga County (Donald A. Greenwood, J.), entered August 7,
2015.  The order and judgment, among other things, denied plaintiff’s
motion for partial summary judgment and granted defendants’ motions
for summary judgment.  
It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1245    
CA 16-00497  
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, AND SCUDDER, JJ.    
                                                            
                                                            
MARCIA WENTLAND, PLAINTIFF-APPELLANT,                       
                                                            
V
ORDER
                                                            
E.A. GRANCHELLI DEVELOPERS, INC., AND K.M. 
TREATS, DEFENDANTS-RESPONDENTS.                                     
(APPEAL NO. 1.)
                                             
BROWN CHIARI LLP, BUFFALO (DAVID W. OLSON OF COUNSEL), FOR
PLAINTIFF-APPELLANT. 
LAW OFFICES OF DESTIN C. SANTACROSE, BUFFALO (LISA DIAZ-ORDAZ OF
COUNSEL), FOR DEFENDANT-RESPONDENT E.A. GRANCHELLI DEVELOPERS, INC.
HAGELIN SPENCER LLC, BUFFALO (WILLIAM SWIFT OF COUNSEL), FOR
DEFENDANT-RESPONDENT K.M. TREATS.
 
Appeal from an order of the Supreme Court, Niagara County (Frank
Caruso, J.), entered January 22, 2016.  The order denied the motion of
plaintiff to set aside a verdict.  
It is hereby ORDERED that said appeal is unanimously dismissed
without costs (see Smith v Catholic Med. Ctr. of Brooklyn & Queens,
155 AD2d 435; see also CPLR 5501 [a] [1]). 
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1246    
CA 16-00500  
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, AND SCUDDER, JJ.    
                                                            
                                                            
MARCIA WENTLAND, PLAINTIFF-APPELLANT,                       
                                                            
V
MEMORANDUM AND ORDER
                                                            
E.A. GRANCHELLI DEVELOPERS, INC., AND K.M. 
TREATS, DEFENDANTS-RESPONDENTS.                                     
(APPEAL NO. 2.)  
                                           
BROWN CHIARI LLP, BUFFALO (DAVID W. OLSON OF COUNSEL), FOR
PLAINTIFF-APPELLANT. 
LAW OFFICES OF DESTIN C. SANTACROSE, BUFFALO (LISA DIAZ-ORDAZ OF
COUNSEL), FOR DEFENDANT-RESPONDENT E.A. GRANCHELLI DEVELOPERS, INC.
HAGELIN SPENCER LLC, BUFFALO (WILLIAM SWIFT OF COUNSEL), FOR
DEFENDANT-RESPONDENT K.M. TREATS.
 
Appeal from a judgment of the Supreme Court, Niagara County
(Frank Caruso, J.), entered January 22, 2016.  The judgment granted
judgment in favor of defendants upon a jury verdict.  
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Memorandum:  Plaintiff commenced this action to recover damages
for injuries she allegedly sustained when she slipped and fell outside
the storefront of defendant K.M. Treats, a tenant in a plaza owned by
defendant E.A. Granchelli Developers, Inc. (Granchelli).  At trial,
plaintiff’s theory was that she slipped on ice that formed when
melting snow dripped from Granchelli’s metal canopy and froze on the
sidewalk below, and thus Granchelli was negligent in creating the
dangerous condition on its sidewalk.  The jury returned a verdict
finding that defendants were not negligent.  Plaintiff thereafter
moved to set aside the verdict as against the weight of the evidence
and on the ground of juror misconduct, and Supreme Court denied that
motion.
“It is well established that [a] verdict rendered in favor of a
defendant may be successfully challenged as against the weight of the
evidence only when the evidence so preponderated in favor of the
plaintiff that it could not have been reached on any fair
interpretation of the evidence” (McMillian v Burden, 136 AD3d 1342,
1343 [internal quotation marks omitted]; see Krieger v McDonald’s
Rest. of N.Y., Inc., 79 AD3d 1827, 1828, lv dismissed 17 NY3d 734). 

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1246    
CA 16-00500  
That determination is within the court’s sound discretion and, “if the
verdict is one that reasonable persons could have rendered after
receiving conflicting evidence, the court should not substitute its
judgment for that of the jury” (McMillian, 136 AD3d at 1343 [internal
quotation marks omitted]; see Parr v Mongarella, 77 AD3d 1429, 1429-
1430).  Where there is conflicting testimony, it is the jury’s
function to make credibility determinations, which are entitled to
deference based on the jury’s opportunity to see and hear the
witnesses (see McMillian, 136 AD3d at 1343-1344).  Moreover, the jury
is entitled to reject the opinion of an expert witness, particularly
where such testimony is contrary to the testimony of another expert
witness whom the jury finds more credible (see Sanchez v Dawson, 120
AD3d 933, 935; see also McMillian, 136 AD3d at 1344).
Contrary to plaintiff’s contention, we conclude that the verdict
is not against the weight of the evidence.  On cross-examination,
plaintiff testified that the ice patch on which she slipped was 15 to
16 inches wide and, although she felt “a couple drops” of water from
the canopy, she could not say that dripping water caused the condition
on which she fell.  Granchelli’s maintenance supervisor, upon whose
testimony plaintiff heavily relies, testified that the alleged defect
in the canopy consistently created an ice patch that was four inches
wide, and could not have created an icy condition as large as the one
on which plaintiff allegedly slipped.  Their testimony comports with
the testimony of Granchelli’s expert, who opined that, although an
“extremely small” amount of water likely dripped off the canopy, the
icy condition on the sidewalk was more likely ice created by
precipitation.  Moreover, Granchelli’s office personnel testified that
they never received a complaint about icy conditions or about the
metal canopy prior to plaintiff’s accident.  Although the maintenance
supervisor testified otherwise, he was married to the owner of the
other defendant herein, whose interests were adverse to Granchelli’s
interests.  We therefore conclude that the evidence did not so
preponderate in favor of plaintiff that the verdict could not have
been reached upon a fair interpretation of the evidence (see Krieger,
79 AD3d at 1828-1829).
We reject plaintiff’s further contention that the court abused
its discretion in denying her motion to set aside the verdict insofar
as it was based on juror misconduct.  The court held a hearing on that
part of the motion and took testimony from one juror who discussed
with the jury his observations about canopies.  We conclude that the
evidence presented at the hearing supports the court’s conclusion that
the subject juror did not hold himself out to the jury as an expert,
but properly based his opinions on his day-to-day life experience (see
generally Campopiano v Volcko, 82 AD3d 1587, 1588-1589).
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1247    
CA 15-01472  
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, AND SCUDDER, JJ.    
                                                            
                                                            
IN THE MATTER OF GREG WILLIAMS, 
PETITIONER-APPELLANT,       
                                                            
V
MEMORANDUM AND ORDER
                                                            
ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK 
STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY 
SUPERVISION, RESPONDENT-RESPONDENT.                                    
 
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (ADAM W. KOCH OF
COUNSEL), FOR PETITIONER-APPELLANT. 
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (WILLIAM E. STORRS OF
COUNSEL), FOR RESPONDENT-RESPONDENT.                                   
                                               
Appeal from a judgment of the Supreme Court, Wyoming County
(Michael M. Mohun, A.J.), entered July 14, 2015 in a CPLR article 78
proceeding.  The judgment dismissed the petition.  
It is hereby ORDERED that said appeal is unanimously dismissed
without costs.
Memorandum:  Petitioner appeals from a judgment dismissing his
petition pursuant to CPLR article 78 seeking to annul the
determination denying him parole release.  The Attorney General has
advised this Court that, subsequent to that denial, petitioner
reappeared before the Board of Parole in May of 2016 and was again
denied release.  Consequently, this appeal must be dismissed as moot
(see Matter of Sanchez v Evans, 111 AD3d 1315, 1315).  Contrary to
petitioner’s contention, this matter does not fall within the
exception to the mootness doctrine (see id.). 
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1248    
KA 15-00948  
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.   
                                                            
                                                            
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,            
                                                            
V
MEMORANDUM AND ORDER
                                                            
RICHARD A. DAVIS, DEFENDANT-APPELLANT.
                      
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CAITLIN M. CONNELLY OF
COUNSEL), FOR DEFENDANT-APPELLANT.   
MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DANIEL J.
PUNCH OF COUNSEL), FOR RESPONDENT.                                     
                        
Appeal from an order of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), entered November 6, 2014.  The order determined
that defendant is a level two risk pursuant to the Sex Offender
Registration Act.  
It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the matter is
remitted to Supreme Court, Erie County, for further proceedings in
accordance with the following memorandum:  Defendant appeals from an
order determining that he is a level two risk pursuant to the Sex
Offender Registration Act (Correction Law § 168 et seq.).  Contrary to
defendant’s contention, Supreme Court did not err in assessing 20
points against defendant under the risk factor for a continuing course
of sexual misconduct.  “[T]he court was not limited to considering
only the crime of which defendant was convicted in making its
determination” (People v Feeney, 58 AD3d 614, 615; see People v
Glanowski, 140 AD3d 1625, 1625-1626, lv denied 28 NY3d 902).  The
People proved by clear and convincing evidence that defendant engaged
in “two or more acts of sexual contact, at least one of which is an
act of sexual intercourse, oral sexual conduct, anal sexual conduct,
or aggravated sexual contact, which acts are separated in time by at
least 24 hours” (Sex Offender Registration Act:  Risk Assessment
Guidelines and Commentary, at 10 [2006]; see Glanowski, 140 AD3d at
1625-1626; People v Scott, 71 AD3d 1417, 1418, lv denied 14 NY3d 714).
We agree with defendant, however, that the court failed to
consider his request for a downward departure.  We therefore reverse
the order and remit the matter to Supreme Court for a determination of
defendant’s request for a downward departure (see People v Cobb, 141 

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1248    
KA 15-00948  
AD3d 1174, 1175; People v Lewis, 140 AD3d 1697, 1697).
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1250    
KA 13-01951  
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.   
                                                            
                                                            
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,            
                                                            
V
MEMORANDUM AND ORDER
                                                            
WILLIS KNIGHT, JR., DEFENDANT-APPELLANT.
                    
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT. 
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.                                              
                     
Appeal from a resentence of the Monroe County Court (John Lewis
DeMarco, J.), rendered September 6, 2013.  Defendant was resentenced
following his conviction, upon a plea of guilty, of burglary in the
second degree.  
It is hereby ORDERED that the resentence so appealed from is
unanimously affirmed. 
Memorandum:  On appeal from a resentence following his conviction
upon a plea of guilty of burglary in the second degree (Penal Law 
§ 140.25 [2]), defendant contends that County Court erred in
resentencing him as a second violent felony offender and that the
resentence is unduly harsh and severe.  We reject those contentions. 
We note at the outset that the posthearing loss of the exhibits that
were submitted at the predicate felony hearing, including the
certificate of conviction from the predicate felony offense, does not
deprive defendant of his right to appellate review of these issues. 
At the hearing, defense counsel did not object to the admission in
evidence of the certificate of conviction, and there is no dispute
that the certificate of conviction bore defendant’s name and date of
birth and was therefore “sufficient to establish that defendant was
previously convicted of [the predicate] crime” (People v Switzer, 55
AD3d 1394, 1395, lv denied 11 NY3d 858; see People v Rattelade, 226
AD2d 1107, 1107-1108, lv denied 88 NY2d 992).  Inasmuch as “the
information in the missing [certificate of conviction] can be gleaned
from the record and there is no dispute with respect to the accuracy
of that information,” we conclude that there is sufficient information
to allow for effective appellate review of defendant’s contention
(People v Jackson, 11 AD3d 928, 930, lv denied 3 NY3d 757; see
generally People v Yavru-Sakuk, 98 NY2d 56, 60).  Based on the record,
we conclude that the People established beyond a reasonable doubt that
defendant was a second violent felony offender (see People v Kinnear,

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1250    
KA 13-01951  
78 AD3d 1593, 1594).  We further conclude that the resentence is not
unduly harsh or severe. 
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1251    
KA 15-00814  
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.   
                                                            
                                                            
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,            
                                                            
V
MEMORANDUM AND ORDER
                                                            
STEPHEN M. REBER, DEFENDANT-APPELLANT. 
                     
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.                                              
                     
Appeal from an order of the Monroe County Court (Victoria M.
Argento, J.), entered March 30, 2015.  The order determined that
defendant is a level two risk pursuant to the Sex Offender
Registration Act.  
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs. 
Memorandum:  Defendant appeals from an order designating him a
level two sex offender pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.).  Contrary to defendant’s contention,
County Court did not abuse its discretion in denying defendant’s
request for a downward departure from the presumptive risk level (see
People v Ricks, 124 AD3d 1352, 1352; see generally People v Howard, 27
NY3d 337, 341; People v Gillotti, 23 NY3d 841, 861).  Defendant
preserved his contention for our review with respect to only three of
the multiple alleged mitigating factors or circumstances now asserted
by him (see People v Uphael, 140 AD3d 1143, 1144-1145, lv denied ___
NY3d ___ [Nov. 21, 2016]; People v Fullen, 93 AD3d 1340, 1340, lv
denied 19 NY3d 805), and two of those factors are adequately taken
into account by the guidelines and thus improperly asserted as
mitigating factors (see generally Gillotti, 23 NY3d at 861; People v
Finocchario, 140 AD3d 1676, 1676-1677, lv denied 28 NY3d 906).  We
conclude with respect to the remaining factor that “defendant failed
to establish his entitlement to a downward departure from his
presumptive risk level inasmuch as he failed to establish the
existence of [that] mitigating factor[] by the requisite preponderance
of the evidence” (People v Smith, 140 AD3d 1705, 1706, lv denied 28
NY3d 904; see generally Gillotti, 23 NY3d at 861).  
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1253    
KA 15-00420  
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.   
                                                            
                                                            
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,            
                                                            
V
MEMORANDUM AND ORDER
                                                            
WILLIE D. SMITH, III, DEFENDANT-APPELLANT.
                  
THE LAW OFFICE OF GUY A. TALIA, ROCHESTER (GUY A. TALIA OF COUNSEL),
FOR DEFENDANT-APPELLANT.   
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (SEAN R. STERLING OF
COUNSEL), FOR RESPONDENT.                                              
                                      
Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered September 12, 2014.  The judgment convicted
defendant, upon a jury verdict, of assault in the first degree,
assault in the second degree, reckless endangerment in the first
degree and endangering the welfare of a child.  
It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing that part convicting
defendant of reckless endangerment in the first degree and dismissing
count three of the indictment, and as modified the judgment is
affirmed. 
Memorandum:  Defendant appeals from a judgment convicting him
upon a jury verdict of assault in the first degree (Penal Law § 120.10
[3]), assault in the second degree (§ 120.05 [9]), reckless
endangerment in the first degree (§ 120.25), and endangering the
welfare of a child (§ 260.10 [1]).  As the People correctly concede,
“[r]eckless endangerment in the first degree . . . is a lesser
included offense of assault in the first degree” (People v Cotton, 214
AD2d 994, 994, lv denied 86 NY2d 733; see People v Glanda, 18 AD3d
956, 959, lv denied 6 NY3d 754, reconsideration denied 6 NY3d 848). 
We therefore modify the judgment by reversing that part convicting
defendant of reckless endangerment in the first degree and by
dismissing count three of the indictment.
By failing to renew his motion for a trial order of dismissal
after presenting evidence, defendant failed to preserve for our review
his contention that the evidence is legally insufficient (see People v
Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678).  In any event, that
contention is without merit.  The evidence is legally sufficient to
establish that defendant was the perpetrator (see People v McLain, 80
AD3d 992, 996, lv denied 16 NY3d 897).  The evidence established that

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1253    
KA 15-00420  
defendant’s two-month-old child sustained broken arms, legs, and ribs
that were in various stages of healing, and a fracture of the skull
that had been recently inflicted.  The child’s mother testified that
she observed defendant strike the child in the head three times with a
closed fist the night before the child was treated at the hospital. 
The evidence further established that, with the exception of one
evening approximately two weeks prior to the child being treated at
the hospital, defendant and the child’s mother were the only
caretakers of the child.  Contrary to defendant’s contention, the
mother’s testimony was not incredible as a matter of law.  “Testimony
will be deemed incredible as a matter of law only where it is
‘manifestly untrue, physically impossible, contrary to experience, or
self-contradictory’ ” (People v Smith, 73 AD3d 1469, 1470, lv denied
15 NY3d 778), and that is not the case here.  With respect to the
conviction of assault in the first degree, the evidence is legally
sufficient to establish that there was a grave risk of death to the
child as a result of defendant’s conduct and that the child sustained
a serious physical injury (see Penal Law § 120.10 [3]; see generally
People v Borst, 256 AD2d 1168, 1168, lv denied 93 NY2d 871).  A
radiologist testified that the child sustained a diffuse axial injury
to the brain, which carried a high risk for coma and death.  Viewing
the evidence in light of the crimes as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), we reject defendant’s contention that
the verdict is against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495).  “[I]ssues 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
Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942), and we see no
basis for disturbing the jury’s credibility determinations in this
case.
Defendant failed to preserve for our review his contention that
the indictment was facially duplicitous (People v Becoats, 17 NY3d
643, 650-651, cert denied ___ US ___, 132 S Ct 1970), or rendered
duplicitous by the trial testimony (see People v Allen, 24 NY3d 441,
449-450), and we decline to exercise our power to address it as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]).  We reject defendant’s contention that County Court erred in
admitting evidence of prior acts of abuse by defendant against the
child’s mother.  The testimony of the child’s mother was admissible to
show the mother’s state of mind, i.e., to explain why she did not call
the police sooner when she noticed injuries on the child (see People v
Justice, 99 AD3d 1213, 1215, lv denied 20 NY3d 1012; see also People v
Bradford, 118 AD3d 1254, 1256, lv denied 24 NY3d 1082; People v Long,
96 AD3d 1492, 1493, lv denied 19 NY3d 1027).  We conclude that the
probative value of that testimony outweighed any prejudice to
defendant, and that any prejudice to defendant was also minimized by
the court’s limiting instructions (see generally People v Carson, 4
AD3d 805, 806, lv denied 2 NY3d 797). 
We reject defendant’s contention that he was denied effective
assistance of counsel.  Inasmuch as we have concluded that the
evidence is legally sufficient, defense counsel’s failure to renew the

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KA 15-00420  
motion for a trial order of dismissal does not constitute ineffective
assistance (see People v Washington, 60 AD3d 1454, 1455, lv denied 12
NY3d 922).  Defense counsel’s failure to move to dismiss count one of
the indictment as rendered duplicitous by the trial testimony also
does not constitute ineffective assistance.  “A single error may
qualify as ineffective assistance, but only when the error is
sufficiently egregious and prejudicial as to compromise a defendant’s
right to a fair trial” (People v Caban, 5 NY3d 143, 152).  Here, had
defense counsel objected during the trial, “[a]ny uncertainty could
have easily been remedied” through a jury charge (Allen, 24 NY3d at
449), and defense counsel may have chosen to remain silent because
defendant may have “prefer[red] to face one count (and thus one
conviction) rather than several” (Becoats, 17 NY3d at 651). 
Defendant’s challenges to defense counsel’s cross-examination of the
medical witnesses and failure to make certain objections during the
prosecutor’s direct examination of the child’s mother constitute mere
disagreements with matters of strategy that do not rise to the level
of ineffective assistance (see People v Ocasio, 81 AD3d 1469, 1469-
1470, lv denied 16 NY3d 898, cert denied ___ US ___, 132 S Ct 318). 
To the extent that defendant contends that counsel was ineffective in
failing to call a particular witness, that contention involves matters
outside the record on appeal and must be raised by way of a motion
pursuant to CPL article 440 (see id. at 1470).  Defense counsel was
not ineffective for failing to request a circumstantial evidence
charge because such a charge is required only where the evidence
against defendant is wholly circumstantial (see People v Slade, 133
AD3d 1203, 1207, lv denied 26 NY3d 1150), which is not the case here
(see People v Geddes, 49 AD3d 1255, 1256-1257, lv denied 10 NY3d 863). 
We conclude, with respect to all of defendant’s claims concerning the
alleged ineffective assistance of counsel, that the evidence, the law,
and the circumstances of this case, viewed in totality and as of the
time of representation, establish that defendant received meaningful
representation (see generally People v Baldi, 54 NY2d 137, 147).
Defendant’s contention that the grand jury proceeding was
defective because the prosecutor engaged in misconduct by eliciting
false testimony is without merit.  “Upon our review of the grand jury
proceeding, we conclude that [t]here is no indication that the People
knowingly or deliberately presented false testimony before the [g]rand
[j]ury, and thus there is no basis for finding that the integrity of
the [g]rand [j]ury proceeding was impaired . . . by the alleged false
testimony” (People v Bean, 66 AD3d 1386, 1386, lv denied 14 NY3d 769
[internal quotation marks omitted]).  Defendant’s further contention
that the grand jury proceeding was defective because he appeared
before the grand jury in shackles and jail attire is not preserved for
our review (see People v Griggs, 27 NY3d 602, 605-606, rearg denied 28
NY3d 957), and we decline to exercise our power to review it as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]).  Defendant also failed to preserve for our review his contention
that the court increased the sentence because he chose to assert his
right to a trial rather than to accept a plea bargain (see People v
Flinn, 98 AD3d 1262, 1263-1264, affd 22 NY3d 599, rearg denied 23 NY3d
940).  In any event, that contention is without merit (see id.).  
“ ‘[T]he mere fact that a sentence imposed after trial is greater than

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1253    
KA 15-00420  
that offered in connection with plea negotiations is not proof that
defendant was punished for asserting his right to trial’ ” (People v
Chappelle, 14 AD3d 728, 729, lv denied 5 NY3d 786).  Further, the
record does not disclose any vindictiveness on the part of the court
(see People v Jackson, 94 AD3d 1559, 1561, lv denied 19 NY3d 1026).
The certificate of conviction incorrectly reflects that defendant
was sentenced as a second felony offender, and it must therefore be
amended to reflect that he was sentenced as a second violent felony
offender (see People v Dombrowski, 94 AD3d 1416, 1417, lv denied 19
NY3d 959).  We have considered defendant’s remaining contentions and
conclude that they are without merit.
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1254    
KA 14-00505  
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.   
                                                            
                                                            
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,            
                                                            
V
MEMORANDUM AND ORDER
                                                            
BENNIE SMITH, DEFENDANT-APPELLANT.   
                       
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.   
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.                                           
                  
Appeal from a judgment of the Onondaga County Court (Thomas J.
Miller, J.), rendered January 29, 2014.  The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the third degree.  
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed. 
Memorandum:  Defendant appeals from a judgment convicting him
upon his plea of guilty of criminal possession of a controlled
substance in the third degree (Penal Law § 220.16 [1]).  Defendant
contends that County Court erred in refusing to suppress evidence and
dismiss the indictment because the evidence was obtained pursuant to a
search warrant that was based, in part, upon communications
intercepted under improperly issued eavesdropping warrants (see CPL
700.15), and the People failed to provide copies of the eavesdropping
warrants and accompanying applications within 15 days after
arraignment (see CPL 700.70).  Inasmuch as defendant failed to seek
suppression of the evidence on those grounds, his contention is not
preserved for our review (see People v Romero, 120 AD3d 947, 949, lv
denied 24 NY3d 1004; People v DePonceau, 96 AD3d 1345, 1346, lv denied
19 NY3d 1025; People v Espiritusanto, 4 AD3d 826, 826, lv denied 2
NY3d 799).  We decline to exercise our power to review his contention
as a matter of discretion in the interest of justice (see CPL 470.15
[3] [c]).
We reject defendant’s further contention that defense counsel was
ineffective for failing to seek suppression by challenging the
eavesdropping warrants.  With respect to challenging the warrants as
improperly issued, we conclude that “[t]here can be no denial of
effective assistance of trial counsel arising from counsel’s failure
to ‘make a motion . . . that has little or no chance of success’ ”

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1254    
KA 14-00505  
(People v Caban, 5 NY3d 143, 152).  Even assuming, arguendo, that
defendant has a colorable claim that the People violated the notice
requirements of CPL 700.70, we reject defendant’s claim that defense
counsel was ineffective for failing to seek suppression of the
evidence on that ground inasmuch as defendant made no showing that
such failure “ ‘was not premised on strategy’ ” (People v Carver, 27
NY3d 418, 421).
Finally, we reject defendant’s contention that the sentence is
unduly harsh and severe.
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1255    
KA 12-00910  
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.   
                                                            
                                                            
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,            
                                                            
V
MEMORANDUM AND ORDER
                                                            
ANDREW DEAN, DEFENDANT-APPELLANT.
                           
LAW OFFICES OF JOSEPH D. WALDORF, P.C., ROCHESTER (STEPHEN J. BIRD OF
COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF
COUNSEL), FOR RESPONDENT.                                              
                   
Appeal from a judgment of the Livingston County Court (Dennis S.
Cohen, J.), rendered February 23, 2012.  The judgment convicted
defendant, upon a jury verdict, of two counts of driving while
intoxicated, as class E felonies, and aggravated unlicensed operation
of a motor vehicle in the first degree.  
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed. 
Memorandum:  On appeal from a judgment convicting him upon a jury
verdict of two counts of felony driving while intoxicated (Vehicle and
Traffic Law §§ 1192 [2], [3]; 1193 [1] [c] [i] [A]) and one count of
aggravated unlicensed operation of a motor vehicle in the first degree
(§ 511 [3] [a] [i]), defendant contends that County Court erred in
refusing to suppress statements he made to law enforcement officers
following his arrest for the instant offenses.  Even assuming,
arguendo, that those statements should have been suppressed, we
conclude that any error in failing to suppress them is harmless beyond
a reasonable doubt (see generally People v Crimmins, 36 NY2d 230,
237).  The evidence at trial established that, less than two hours
before his arrest for the instant offenses, two police officers
observed defendant urinating in public while holding an open container
of beer.  At that time, defendant admitted to the officers that he had
been drinking beer, and it appeared to the officers that defendant was
intoxicated.  The officers, who had knowledge that defendant’s license
was suspended, informed defendant of the suspension and advised him
not to drive.  Immediately before his arrest for the instant offenses,
one of the same officers observed defendant operating a motor vehicle. 
When stopped by the officer, defendant attempted to flee but was
apprehended.  At that time, defendant failed all field sobriety tests,
had slurred speech and smelled of alcohol.  According to the
breathalyzer test, defendant had a blood alcohol content of .16%,
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