SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

757 

KA 15-00024 

PRESENT: WHALEN, P.J., SMITH, NEMOYER, CURRAN, AND SCUDDER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

WESLEY WOODS, DEFENDANT-APPELLANT. 

 

DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT. 

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (ASHLEY R.

LOWRY OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Erie County (Russell

P. Buscaglia, A.J.), rendered December 3, 2014. The judgment

convicted defendant, upon a jury verdict, of kidnapping in the first

degree, robbery in the first degree and assault in the second degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of kidnapping in the first degree (Penal Law 

§ 135.25 [2] [a]), robbery in the first degree (§ 160.15 [4]), and

assault in the second degree (§ 120.05 [2]). The charges arose from

an incident in which the victim was held captive, pistol whipped, and

then repeatedly humiliated, including being forced to lick his own

blood from a boot of one of the perpetrators. The perpetrators made a

video recording of parts of the incident and posted the recording on

social media. 

Defendant contends that Supreme Court erred in refusing to permit

him to introduce into evidence a video recording in which the victim

told defendant’s girlfriend that defendant did not commit the crime,

because the recording established that he did not commit the crime. 

At trial, however, he contended only that the recording was admissible

to impeach the victim. “Inasmuch as [defendant’s current] theory was

not expressed to the trial court, the issue is not preserved for our

review” (People v Lyons, 81 NY2d 753, 754). In any event, any error

in the court’s refusal to admit the recording in evidence is harmless

inasmuch as “[t]he substance of th[e] prior statement was admitted in

evidence through defense counsel’s cross-examination of [the victim]”

(People v Lewis, 277 AD2d 1022, 1022, lv denied 96 NY2d 802; see

People v Person, 26 AD3d 292, 294, affd 8 NY3d 973), wherein the

victim admitted that he said that defendant did not commit the crime. 
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KA 15-00024 

Defendant’s contention that the evidence is not legally

sufficient is not preserved for our review because his “motion for a

trial order of dismissal was not specifically directed at the same

alleged shortcoming[s] in the evidence raised on appeal” (People v

Brown, 96 AD3d 1561, 1562, lv denied 19 NY3d 1024 [internal quotation

marks omitted]; see People v Abon, 132 AD3d 1235, 1235-1236, lv denied

27 NY3d 1127; see generally People v Gray, 86 NY2d 10, 19). In any

event, viewing the evidence in the light most favorable to the People

(see People v Contes, 60 NY2d 620, 621), and affording them the

benefit of every favorable inference (see People v Bleakley, 69 NY2d

490, 495), we conclude that the evidence is legally sufficient to

establish the elements of the crimes of which defendant was convicted.

Moreover, viewing the evidence in light of the elements of the

crimes as charged to the jury (see People v Danielson, 9 NY3d 342,

349), we reject defendant’s further contention that the verdict is

against the weight of the evidence (see generally Bleakley, 69 NY2d at

495). Defendant’s contention is based largely on his assertion that

the victim and the codefendant who testified at trial in order to

obtain a more favorable plea bargain are not credible, and that their

versions of the event are in conflict with, and unsupported by, other

evidence. It is well settled that “[r]esolution of issues 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

[internal quotation marks omitted]). Contrary to defendant’s

contention, the testimony of the victim and the codefendant “was not

so inconsistent or unbelievable as to render it incredible as a matter

of law” (People v Black, 38 AD3d 1283, 1285, lv denied 8 NY3d 982). 

In addition, there was significant evidence, including video

recordings, that the victim was beaten and humiliated in defendant’s

house, and testimony indicating that, in the recordings, defendant was

directing the victim to stop resisting during the beating. 

Furthermore, contrary to defendant’s contention, there is expert

scientific evidence establishing that the victim’s blood was found in

numerous places in defendant’s house, lending further credence to the

victim’s testimony. Thus, we see no basis for disturbing the jury’s

credibility determinations in this case. Contrary to defendant’s

further contention, the jury’s conclusion that there was insufficient

evidence to establish the affirmative defense to robbery under Penal

Law § 160.15 (4) is not contrary to the weight of the evidence. 

Defendant further contends that the sentence is unduly harsh and

severe. Contrary to the People’s contention, it is well settled that

our “sentence-review power may be exercised, if the interest of

justice warrants, without deference to the sentencing court” (People v

Delgado, 80 NY2d 780, 783; see People v Lopez, 6 NY3d 248, 260 n 5). 

Thus, we may “substitute our own discretion for that of a trial court

which has not abused its discretion in the imposition of a sentence”

(People v Suitte, 90 AD2d 80, 86; see People v Smart, 100 AD3d 1473,

1475, affd 23 NY3d 213; People v Johnson, 136 AD3d 1417, 1418, lv

denied 27 NY3d 1134). Nevertheless, we conclude that the sentence is 
-3- 757 

KA 15-00024 

not unduly harsh or severe.

Entered: September 30, 2016 Frances E. Cafarell

Clerk of the Court