| People v Borcyk |
| 2009 NY Slip Op 02435 [60 AD3d 1489] |
| March 27, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Gregory J.Borcyk, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered July6, 2005. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him of murder in the second degree(Penal Law § 125.25 [1]), defendant contends that the verdict is against the weight of theevidence. We reject that contention. Viewing the evidence in light of the elements of the crimeas charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). According to the testimony of prosecution witnesses,the victim died by manual strangulation and scratched her neck in an effort to remove someoneelse's hands from her neck. In addition, the DNA of defendant, who repeatedly denied havingmet the victim, was found beneath the fingernails of the victim's right hand and in semencollected from the victim's vagina. The jury was entitled to credit that testimony and to discreditthe testimony of a witness who offered conflicting accounts of whether he saw persons otherthan defendant remove the body of the victim from her home (see generally id.).
On the record before us, we also reject the contention of defendant that he was deniedeffective assistance of counsel. Defendant has not shown that a suppression motion, if made,would have been successful and thus has failed to establish that defense counsel was ineffectivein failing to make such a motion (see People v Rivera, 45 AD3d 1487, 1488 [2007],lv denied 9 NY3d 1038 [2008]). Moreover, defense counsel had a discernible strategy inacknowledging that defendant's DNA was collected from the victim (see People vRivera, 71 NY2d 705, 708-709 [1988]; People v Gaffney, 30 AD3d 1096, 1097[2006], lv denied 7 NY3d 789 [2006]), and was not ineffective for failing to object whenthe prosecutor elicited testimony with respect to what defendant inaccurately describes as hisinvocation of the right to counsel. The remaining instance of alleged ineffective assistance ofcounsel, i.e., that defense counsel was ineffective in failing to present evidence that the policeexamined the vehicle driven by defendant at the time of the victim's death and found no evidencethat the victim had been in that vehicle, involves matters outside the record on [*2]appeal and thus is properly raised by way of a motion pursuant toCPL article 440 (see People v Barnes, 56 AD3d 1171 [2008]; People v Jenkins,25 AD3d 444, 445-446 [2006], lv denied 6 NY3d 834 [2006]).
Finally, defendant failed to preserve for our review his contentions that the Peopleimproperly elicited testimony concerning his purported invocation of the right to counsel andthat County Court's Sandoval ruling constitutes an abuse of discretion (see CPL470.05 [2]). We decline to exercise our power to review those contentions as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). Present—Scudder,P.J., Smith, Centra, Fahey and Pine, JJ.