People v. Shuler

Apr 17, 1989
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— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Appelman, J.), rendered September 16, 1986, convicting him of criminal possession of ‍​​​​​‌‌​​​​‌‌​​​‌‌‌‌‌​​‌‌​‌​‌​‌‌‌​‌‌‌‌​‌​​​‌​​‌‌‌‌​‌‌‌​‌‌​‌​‌‌​‌​​‌​​‌‌​​‌​‌‌‌​​​​‌‌​‌‌​‌​​​​​‌​‍a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree, and resisting arrest, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that he was denied his right to effective assistance of counsel is without merit. The failure ‍​​​​​‌‌​​​​‌‌​​​‌‌‌‌‌​​‌‌​‌​‌​‌‌‌​‌‌‌‌​‌​​​‌​​‌‌‌‌​‌‌‌​‌‌​‌​‌‌​‌​​‌​​‌‌​​‌​‌‌‌​​​​‌‌​‌‌​‌​​​​​‌​‍of counsel to make a pretrial motion does not, in and of itself, constitute a basis for a finding of ineffectiveness (People v Forsyth, 112 AD2d 1008; People v Morris, 100 AD2d 630, affd 64 NY2d 803). Here the evidence, the law, and the circumstances of this case, viewed together and as of the time of ‍​​​​​‌‌​​​​‌‌​​​‌‌‌‌‌​​‌‌​‌​‌​‌‌‌​‌‌‌‌​‌​​​‌​​‌‌‌‌​‌‌‌​‌‌​‌​‌‌​‌​​‌​​‌‌​​‌​‌‌‌​​​​‌‌​‌‌​‌​​​​​‌​‍representation, reveal that meaningful representation was provided (see, People v Satterfield, 66 NY2d 796).

Also without merit is the defendant’s contention that his guilt was not proven beyond a reasonable doubt. Resolution of issues of credibility, as well as the weight to be accorded the evidence presented, are primarily questions to be determined ‍​​​​​‌‌​​​​‌‌​​​‌‌‌‌‌​​‌‌​‌​‌​‌‌‌​‌‌‌‌​‌​​​‌​​‌‌‌‌​‌‌‌​‌‌​‌​‌‌​‌​​‌​​‌‌​​‌​‌‌‌​​​​‌‌​‌‌​‌​​​​​‌​‍by the trier of fact, who saw and heard the witnesses (see, People v Gaimari, 176 NY 84, 94). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v Garafolo, 44 AD2d 86, 88). Upon the exercise of our factual review ‍​​​​​‌‌​​​​‌‌​​​‌‌‌‌‌​​‌‌​‌​‌​‌‌‌​‌‌‌‌​‌​​​‌​​‌‌‌‌​‌‌‌​‌‌​‌​‌‌​‌​​‌​​‌‌​​‌​‌‌‌​​​​‌‌​‌‌​‌​​​​​‌​‍power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]). Mangano, J. P., Bracken, Brown and Harwood, JJ., concur.