State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 5, 2015 105528 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

KENNETH M. BRABHAM, Also Known

as SKEET,

Appellant.

________________________________

Calendar Date: January 15, 2015

Before: Lahtinen, J.P., Garry, Devine and Clark, JJ.

__________

John R. Trice, Elmira, for appellant, and appellant 

pro se.

Gerald F. Mollen, District Attorney, Binghamton (Brian

Leeds of counsel), for respondent.

__________

Garry, J.

Appeal from a judgment of the County Court of Broome County

(Cawley, J.), rendered September 12, 2012, upon a verdict

convicting defendant of the crimes of burglary in the first

degree, attempted assault in the first degree and assault in the

second degree.

Defendant and several other men allegedly entered the

victim's apartment without permission and assaulted him. 

Defendant was indicted for burglary in the first degree,

attempted assault in the first degree and assault in the second

degree. He was convicted as charged by a jury and sentenced to

an aggregate prison term of 15 years followed by five years of
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postrelease supervision. Defendant appeals.

Defendant contends that his convictions are not supported

by legally sufficient evidence and are against the weight of the

evidence, asserting that the witness testimony against him was

not credible. Defendant moved to dismiss the charges on this

ground at the close of the People's case, but he did not renew

the motion following the close of all proof. Although his legal

sufficiency claim is therefore unpreserved (see People v Lane, 7

NY3d 888, 889 [2006]; People v Santiago, 118 AD3d 1163, 1164

[2014], lv denied 24 NY3d 964 [2014]), defendant's claim that the

verdict was against the weight of the evidence requires this

Court to examine the sufficiency of the evidence of each element

of the crimes (see People v Rowe, 105 AD3d 1088, 1090 n 2 [2013],

lv denied 21 NY3d 1019 [2013]; People v Mitchell, 94 AD3d 1252,

1253 n [2012], lv denied 19 NY3d 964 [2012]).

The victim testified that he and defendant's paramour were

in his apartment when several men burst through the door,

including defendant, who was holding a gun. Defendant and the

other men beat the victim with various objects, including a

wooden rod or staff, an end table, a propane tank and a hard

object that the victim believed to be the butt of defendant's

gun. The victim testified that he crouched face down on his bed

during most of the assault, trying to protect himself and his

dog, but looked up once to see defendant – whom he had previously

met several times – hitting him in the head with the end table. 

Another assailant hit him repeatedly with the rod, fracturing one

of his fingers. The rod and the end table, both of which were

broken during the attack, were admitted into evidence at trial. 

The victim testified that the assault continued for about 20

minutes until one of the men said, "[H]e's leaking good, let's

get out of here," at which point the men left the apartment,

taking the paramour with them. When the victim left the

apartment in search of assistance, he saw four men "dragging" the

paramour away. He later identified defendant from a photograph,

but could not identify the other assailants.

In addition to the broken finger, the victim sustained

multiple contusions and a laceration on his head, additional

contusions on his face, back, arms and hands, shoulder injuries
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and a large swollen bruise on his arm. He received medical

treatment that included stitches for the head wound, a sling for

the injured arm and physical therapy for the shoulder. He did

not regain full use of his arm for several months and, at the

time of trial, was still unable to move the broken finger. 

The victim and the paramour both testified that defendant

had previously warned them that the paramour was not allowed to

enter the victim's apartment; according to the victim, defendant

said during the assault, "[I] told you not to let [the paramour]

come in here." The paramour was reluctant to testify because of

her relationship with defendant, and did so only after she was

incarcerated pursuant to a warrant for her arrest as a material

and necessary witness. She confirmed the victim's testimony in

part, stating that she was present when defendant and three other

men entered the apartment without permission. She testified that

defendant had a gun, one of the other men had a "stick" and the

other three men beat the victim, but she stated that defendant

removed her from the apartment when the assault began and that

she did not see him strike the victim. 

Defendant challenges the credibility of the victim and the

paramour, pointing to such inconsistencies in their statements as

the conflict between the victim's claim that defendant

participated in the assault and the paramour's claim that he did

not do so. Defendant argues that the victim was unworthy of

belief because of his extensive criminal record and longstanding

history of drug abuse, and he challenges the credibility of the

paramour based upon her history of prostitution and drug abuse,

prior convictions for these activities and testimony that she had

previously traded sex for drugs with the victim. As defendant

contends, the victim's initial statements to police did not

include his later claims that defendant had a gun and that the

victim was struck with a propane tank. Moreover, the victim

acknowledged that he and the paramour had smoked crack together

in his apartment on the night before the assault, that he

continued to abuse drugs thereafter, and that he had last smoked

crack only a few days before the trial. However, he testified

that he was not under the influence of drugs when the assault

occurred nor at trial, and a police officer testified that the

victim was able to communicate clearly after the assault. 
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There were other inconsistencies in the victim's testimony,

such as his testimony at one point that three men entered the

apartment and at another point that the number was between two

and four. However, we reject defendant's argument that these

issues – all of which were thoroughly explored on crossexamination – rendered the testimony unworthy of belief. The

testimony was not contradicted by any other compelling evidence

and cannot be considered incredible as a matter of law (see

People v Cridelle, 112 AD3d 1141, 1143 [2013]; People v Moyer, 75

AD3d 1004, 1006 [2010]). Instead, the conflicts and

inconsistencies in the testimony created "classic credibility

issue[s] for the jury to resolve" (People v Mitchell, 57 AD3d

1308, 1309 [2008] [internal quotation marks and citation

omitted]; accord People v McCray, 102 AD3d 1000, 1004 [2013],

affd 23 NY2d 193 [2014]). Viewing the evidence in a neutral

light and according deference to the jury's credibility

assessments, the verdict is supported by the weight of the

evidence as to all of the charged crimes (see People v Mateo, 101

AD3d 1458, 1459-1460 [2012], lv denied 21 NY3d 913 [2013]; People

v Dove, 89 AD3d 1153, 1153-1154 [2011], lv denied 18 NY3d 957

[2012]; People v Elliot, 299 AD2d 731, 733 [2002]).

Defendant's representation at trial did not constitute the

ineffective assistance of counsel. As he contends, his counsel's

arguments in the trial motion to dismiss and in summation that

the victim did not sustain serious physical injury were

misguided, as no such showing is required to prove attempted

assault in the first degree (see People v Daniels, 97 AD3d 845,

847 [2012], lv denied 20 NY3d 931 [2012]; People v Gray, 30 AD3d

771, 773 [2006], lv denied 7 NY3d 848 [2006]). Moreover, defense

counsel was unsuccessful in using a defense witness to impeach

defendant's testimony as to the number of assailants because he

had not established the necessary foundation, although he did

impeach the victim's testimony through other means (compare

People v Rodriguez, 48 AD3d 312, 312 [2008], lv denied 10 NY3d

939 [2008]). 

"The Constitution guarantees a defendant a fair trial, not

a perfect one," and isolated errors do not ordinarily constitute

ineffective assistance unless they are so grievous as to amount

to a deprivation of the constitutional right to a fair trial
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(People v Henry, 95 NY2d 563, 565-566 [2000] [citation omitted];

see People v Shuaib, 111 AD3d 1055, 1057 [2013], lv denied 24

NY3d 1046 [2014]). The cited errors were not so egregious as to

rise to that level, and defendant's remaining challenges to his

counsel's performance do not establish ineffective assistance. 

Defendant claims that his counsel should have objected to certain

allegedly improper remarks during the prosecutor's summation, but

we find nothing in the challenged comments that was "so

prejudicial to defendant as to render counsel's failure to object

to them evidence of ineffective assistance of counsel" (People v

Albanese, 38 AD3d 1015, 1019 [2007], lv denied 8 NY3d 981 [2007];

accord People v Fisher, 89 AD3d 1135, 1139 [2011], lv denied 18

NY3d 883 [2012]). 

The issues raised in defendant's pro se brief with regard

to counsel's failure to obtain fingerprints or object to the

manner in which defendant was transported to court involve

matters outside the record that are more properly addressed in a

motion pursuant to CPL article 440 (see People v Carlton, 120

AD3d 1443, 1445 [2014]; People v Willi, 80 AD3d 884, 885 [2011],

lv denied 16 NY3d 900 [2011]). Defense counsel made appropriate

motions and evidentiary objections, pursued a reasonable theory

of defense, cross-examined witnesses effectively and presented

cogent opening and closing statements. Viewing the record as a

whole, we find that defendant received meaningful representation

(see People v Green, 108 AD3d 782, 786 [2013], lv denied 21 NY3d

1074 [2013]; People v Race, 78 AD3d 1217, 1221 [2010], lv denied

16 NY3d 835 [2011]).

Finally, we reject defendant's contention that his

sentence, which was less than the maximum that he could have

received, was harsh and excessive. In view of defendant's

criminal history and the violent nature of his actions, we

perceive no abuse of discretion or extraordinary circumstances

warranting a modification (see People v Burgette, 118 AD3d 1034,

1035 [2014], lv denied 24 NY3d 961 [2015]; People v Jones, 114

AD3d 1080, 1082 [2014], lv denied 24 NY3d 961 [2014]). 

Defendant's remaining contentions, including those in his pro se

brief, have been reviewed and found to be without merit.
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Lahtinen, J.P., Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court