| People v Howell |
| 2007 NY Slip Op 07460 [44 AD3d 685] |
| October 2, 2007 |
| Appellate Division, Second Department |
| 77—The People of the State of New York,Respondent, v David Howell, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Victor Barall ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gerges, J.),rendered March 25, 2004, convicting him of murder in the second degree, after a nonjury trial,and imposing sentence.
Ordered that the judgment is modified, on the law, by reducing the defendant's conviction ofthe crime of murder in the second degree to manslaughter in the first degree and vacating thesentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted tothe Supreme Court, Kings County, for sentencing on the conviction of manslaughter in the firstdegree.
The defendant, along with his brother Donald Howell, shot Tyrone Dortch. When policeofficers arrived at the crime scene, they asked Dortch's girlfriend, Cheryl Leach, "whathappened?" In response, she stated that two assailants shot Dortch, and provided the officers witha description of the assailants and the location of the house from which they emerged beforeshooting Dortch. The officers drove Leach to the house, found the defendant and Donald Howell,who fit Leach' s description, and brought them outside, where Leach identified them as theassailants who shot Dortch. At the joint trial of the defendant and Donald Howell, Leach wasunavailable to testify, and her statements to the police were admitted into evidence by theSupreme Court as excited utterances. At the conclusion of trial, Donald Howell was convicted ofmanslaughter in the first [*2]degree and the defendant wasconvicted of murder in the second degree.
The defendant contends that the admission into evidence of Leach's hearsay statementsviolated his right to confront witnesses against him, secured to him by the Confrontation Clauseof the Sixth Amendment of the United States Constitution. However, since the defendant failedto object to the admission of Leach's statements on the ground that it violated his SixthAmendment right of confrontation, he did not preserve the issue for appellate review (seeCPL 470.05 [2]; People v Gray, 86 NY2d 10, 19-21 [1995]; People v Drummond, 34 AD3d492, 493 [2006], lv denied 8 NY3d 921 [2007]; People v Marino, 21 AD3d 430, 431 [2005]), and we decline toreach the issue in the exercise of our interest of justice jurisdiction (see People v Pierre, 30 AD3d 622[2006]).
Since the defendant was afforded "meaningful representation" at trial, his contention that hewas denied effective assistance of counsel must fail (see People v Benevento, 91 NY2d708 [1998]).
On the record of this case, however, we conclude that the evidence was legally insufficient tosupport the defendant's conviction of murder in the second degree, and therefore the convictionon that count cannot be sustained (see CPL 470.15 [2] [a]). However, the evidence waslegally sufficient to support a conviction of manslaughter in the first degree as a lesser-includedoffense. Accordingly, we reduce the conviction to manslaughter in the first degree. Prudenti, P.J.,Fisher, Dillon and Dickerson, JJ., concur.