| People v Vaughan |
| 2008 NY Slip Op 00780 [48 AD3d 1069] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JamesVaughan, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Donald J. Mark, J.),rendered October 26, 1999. The judgment convicted defendant, upon a jury verdict, ofmanslaughter 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 ofmanslaughter in the second degree (Penal Law § 125.15 [1]). Defendant failed to preservefor our review his contention that his right of confrontation was violated by the admission inevidence of hearsay testimony with respect to the cocaine sale between the victim and one of thecodefendants (see generally People v Fleming, 70 NY2d 947, 948 [1988]). In any event,that contention is without merit (seegenerally People v Dickson, 21 AD3d 646, 647 [2005]). Defendant also failed topreserve for our review his contention that his right of confrontation was violated by theadmission in evidence of the hearsay testimony of two police investigators with respect to thestatements of his codefendants (seePeople v Ball, 11 AD3d 904, 905 [2004], lv denied 3 NY3d 755 [2004], 4 NY3d741 [2004]) and, in any event, that contention is also without merit (see People v Davis,290 AD2d 377 [2002], lv denied 100 NY2d 560 [2003]; see also People vGladden, 298 AD2d 462, 463 [2002], lv denied 99 NY2d 582 [2003]).
Defendant failed to renew his motion for a trial order of dismissal with respect to the chargeof depraved indifference murder after presenting evidence and thus failed to preserve for ourreview his contention that Supreme Court erred in denying his motion (see People vHines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). In any event, thatcontention is without merit. Here, defendant was indicted for, inter alia, three counts of murder inthe second degree, including intentional murder (Penal Law § 125.25 [1]), depravedindifference murder (§ 125.25 [2]) and felony murder (§ 125.25 [3]), and wasconvicted of the lesser included offense of manslaughter in the second degree. CPL 290.10 "doesnot contemplate the granting of a trial order dismissing a count of an indictment when legallysufficient evidence exists to support a lesser included offense under that count" (People vCongilaro, 60 AD2d 442, 457-458 [1977]). The evidence is legally sufficient to support thatlesser included offense, inasmuch as the People presented evidence establishing that the gundischarged during a struggle between defendant and [*2]thevictim (see People v DeCapua, 37AD3d 1189, 1190 [2007], lv denied 8 NY3d 983 [2007]). We further conclude thatthe verdict is not against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]).
We reject the contention of defendant that he was denied effective assistance of counselinasmuch as defense counsel's failure to request a jury charge for justification or the defense ofaccident reflects a reasonable trial strategy (see People v Hicks, 12 AD3d 1044 [2004], lv denied 4NY3d 799 [2005]; see also People v Thomas, 299 AD2d 942 [2002], lv denied99 NY2d 620 [2003]; People v Vukel, 263 AD2d 416, 416 [1999], lv denied 94NY2d 830 [1999]). Contrary to defendant's contention, defense counsel did not concede thatdefendant was guilty of the lesser included offense of criminally negligent homicide or the lesserincluded offense of manslaughter (cf.People v Washington, 5 Misc 3d 957, 961-963 [2004], appeal dismissed 19AD3d 1180 [2005]). "[T]he evidence, the law, and the circumstances of [this] case, viewed intotality and as of the time of the representation" establish that defendant received meaningfulrepresentation (People v Baldi, 54 NY2d 137, 147 [1981]).
In addition, the court properly refused to suppress the oral and written statements thatdefendant made to police investigators while he was in custody. The court's determination thatdefendant voluntarily waived his Miranda rights prior to making those statements wasbased upon the credibility of the witnesses at the suppression hearing and thus is entitled to greatdeference (see People v Prochilo, 41 NY2d 759, 761 [1977]; People v White, 300AD2d 1149 [2002], lv denied 99 NY2d 621 [2003]). Contrary to the contention ofdefendant, he did not unequivocally request an attorney when he asked the police whether heneeded a lawyer (see People v D'Eredita, 302 AD2d 925 [2003], lv denied 99NY2d 654 [2003]). Also contrary to the contention of defendant, the court properly denied hismotion for a mistrial based on the People's Rosario violation inasmuch as defensecounsel received the transcript of the witness's prior testimony and was able to conduct aneffective cross-examination of the witness. Defendant thus has failed to demonstrate that he wassubstantially prejudiced by the People's delay in providing him with the transcript in question (see People v Goston, 9 AD3d 905,906-907 [2004], lv denied 3 NY3d 706 [2004]; People v Jacob, 287 AD2d 740[2001], lv denied 97 NY2d 729 [2002]). The sentence is not unduly harsh or severe, andthe court's comment that the victim purchased his death, rather than drugs, at defendant's hands,merely reflected the court's view of the nature of the crime (see People v Anderson, 287AD2d 574 [2001], lv denied 97 NY2d 701 [2002]).
Finally, we note that the certificate of conviction incorrectly reflects that defendant wasconvicted of manslaughter in the second degree under Penal Law § 125.15 (2), and it musttherefore be amended to reflect that he was convicted under Penal Law § 125.15 (1) (see People v Martinez, 37 AD3d1099, 1100 [2007], lv denied 8 NY3d 947 [2007]). Present—Hurlbutt, J.P.,Centra, Fahey, Peradotto and Pine, JJ.