| People v Geddes |
| 2008 NY Slip Op 02340 [49 AD3d 1255] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v George W.Geddes, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered April27, 2005. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon a jury verdict, of murder inthe second degree (Penal Law § 125.25 [1]), defendant contends that the conviction is notsupported by legally sufficient evidence of his intent to kill. We reject that contention (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). It is well settled that, "[a]lthoughintent to kill may not be inferred from the mere fact of killing, it may be inferred from conduct aswell as the surrounding circumstances" (People v Henning, 267 AD2d 1092, 1092[1999], lv denied 94 NY2d 903 [2000]; see People v Price, 35 AD3d 1230, 1231 [2006], lv denied8 NY3d 926 [2007]). Viewing the evidence in the light most favorable to the People, as we must(see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that the requisite intent tokill may be inferred from the admission of defendant that he was solely responsible for thevictim's death, his inconsistent descriptions of the events that caused the death, the medicalevidence, which contradicted defendant's theory of the case, and defendant's conduct in hidingthe victim's body in a storage facility for 14 years (see generally Bleakley, 69 NY2d at495). Further, the verdict is not against the weight of the evidence (see generally id.).
Contrary to defendant's further contention, County Court properly refused to admit inevidence a police report memorializing statements made by defendant's son, who died prior totrial. Even assuming, arguendo, that the report falls within the exception to the hearsay rule forpast recollections recorded (see generally People v Taylor, 80 NY2d 1, 8 [1992]; Prince,Richardson on Evidence §§ 6-216, 6-218 [Farrell 11th ed]), we conclude that thestatements of defendant's son contained therein are inadmissible. Those out-of-court statementswere offered for the truth of the facts asserted and do not fall within any recognized exception tothe hearsay rule (see generally People v Settles, 46 NY2d 154, 166-167 [1978]).
We further reject the contention of defendant that he was denied his right to effective [*2]assistance of counsel based on defense counsel's inability topersuade the court to admit the police report in evidence and defense counsel's failure to requesta circumstantial evidence charge. As noted, the court properly determined that the reportcontained inadmissible hearsay, and we further note that a circumstantial evidence charge wouldhave been improper because the People also presented direct evidence of defendant's guilt, i.e.,statements by defendant that constituted " 'relevant admission[s] of guilt' " (People vGuidice, 83 NY2d 630, 636 [1994], quoting People v Rumble, 45 NY2d 879, 880[1978]; see People v Casper, 42AD3d 887, 888 [2007], lv denied 9 NY3d 990 [2007]; People v Green, 174AD2d 511, 512-513 [1991], lv denied 78 NY2d 1011 [1991]). Thus, defense counselcannot be deemed ineffective for failing to request a circumstantial evidence charge. In anyevent, even assuming, arguendo, that such a charge was appropriate, we conclude that the "singleerror in failing to request such a charge [would] not constitute ineffective representation as it wasnot so serious as to compromise defendant's right to a fair trial" (People v Gunney, 13 AD3d 980,983 [2004], lv denied 5 NY3d 789 [2005]). Present—Martoche, J.P., Lunn, Fahey,Peradotto and Pine, JJ.