| People v Montanez |
| 2008 NY Slip Op 10256 [57 AD3d 1366] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jamon Montanez,Appellant. |
—[*1] Jamon Montanez, defendant-appellant pro se. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered November28, 2005. The judgment convicted defendant, upon a jury verdict, of murder in the second degree,manslaughter in the second degree and criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the law bydirecting that the sentence imposed for criminal possession of a weapon in the second degree shall runconcurrently with the sentence imposed for murder in the second degree and as modified the judgmentis affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of murder inthe second degree (Penal Law § 125.25 [3] [felony murder]), manslaughter in the second degree(§ 125.15 [1]) and criminal possession of a weapon in the second degree (§ 265.03[former (2)]). Defendant contends that the evidence is legally insufficient to support the conviction offelony murder because the People failed to establish the underlying crime of robbery or attemptedrobbery for that count. Defendant failed to preserve that contention for our review (see People vGray, 86 NY2d 10, 19 [1995]) and, in any event, we conclude that it is without merit. The Peoplepresented evidence establishing that defendant and his codefendant went to the victim's home with theintent to commit a robbery and that they procured guns that same day for the purpose of committing therobbery. In addition, they presented evidence that defendant made statements after the robbery inwhich he admitted that a robbery had been attempted or completed. Contrary to the further contentionof defendant, the verdict is not against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]).
We reject defendant's contention that County Court erred in its Ventimiglia ruling inadmitting evidence of defendant's prior bad acts. Evidence of those acts, which included threats bydefendant to three of the People's witnesses, was admissible on the issue of defendant's consciousnessof guilt (see People v Arguinzoni, 48AD3d 1239, 1240 [2008], lv denied 10 NY3d 859 [2008]). Defendant failed to preservefor our review his contention that the court erred in failing to instruct the jury that a witness who hadagreed to steal from the codefendant in the event that the [*2]robberywas successful was an accomplice as a matter of law, and we decline to exercise our power to reviewthat contention as a matter of discretion in the interest of justice (see People v Smith-Merced, 50 AD3d 259 [2008], lv denied10 NY3d 939 [2008]). We conclude that the court did not err in failing to instruct the jury that thecodefendant's girlfriend was an accomplice as a matter of law, inasmuch as she was at most anaccessory after the fact, not a participant in the crime (see CPL 60.22 [2] [a]; People vJones, 73 NY2d 902, 903 [1989], rearg denied 74 NY2d 651 [1989]).
We agree with defendant that the court erred in failing to instruct the jury that the witness whoprocured the guns for defendant and codefendant with the knowledge that the guns would be used for arobbery was an accomplice as a matter of law (see People v Beaudet, 32 NY2d 371,376-377 [1973]; see generally CPL 60.22 [2]). We conclude, however, that the error isharmless because the evidence of guilt is overwhelming, and there is no significant probability thatdefendant otherwise would have been acquitted (see People v Chestnut, 24 AD3d 463 [2005], lv denied 6NY3d 846 [2006]; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).
We agree with defendant that the sentence imposed for criminal possession of a weapon in thesecond degree must run concurrently with the sentence imposed for murder in the second degree, andwe therefore modify the judgment accordingly. "There was no evidence of intended use of the weaponagainst another apart from its use in the killing of the murder victim" (People v Boyer, 31 AD3d 1136, 1139[2006], lv denied 7 NY3d 865 [2006]). We conclude that the sentence, as modified, is notunduly harsh or severe.
To the extent that the contention of defendant in his pro se supplemental brief that he was deniedeffective assistance of counsel is based on matters outside the record on appeal, that contention must beraised by way of a motion pursuant to CPL article 440 (see People v Keith, 23 AD3d 1133, 1134-1135 [2005], lvdenied 6 NY3d 815 [2006]), and on the record before us we conclude that defendant receivedeffective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]). Thecontention of defendant in his pro se supplemental brief concerning the court's ruling on witnessintimidation is without merit and, even assuming, arguendo, that preservation is not required withrespect to defendant's contention concerning CPL 270.15 (1) (a), we conclude that defendant'scontention is without merit. The remaining contentions of defendant in his pro se supplemental brief thatare not otherwise addressed herein are unpreserved for our review (see CPL 470.05 [2]), andwe decline to exercise our power to review them as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Present—Scudder, P.J., Hurlbutt, Lunn, Green and Gorski,JJ.