| People v Pike |
| 2009 NY Slip Op 04816 [63 AD3d 1692] |
| June 12, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Aaron B.Pike, Appellant. |
—[*1] David W. Foley, District Attorney, Mayville (Tracey A. Brunecz of counsel), forrespondent.
Appeal from a judgment of the Chautauqua County Court (John T. Ward, J.), rendered April12, 2006. The judgment convicted defendant, upon a jury verdict, of murder in the first degreeand conspiracy in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of conspiracy in the second degree and dismissingcount four of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofmurder in the first degree (Penal Law § 125.27 [1] [a] [vi]; [b]) and conspiracy in thesecond degree (§ 105.15). We agree with defendant that the indictment, insofar as itcharged him with conspiracy, is jurisdictionally defective. Pursuant to Penal Law §105.20, "[a] person shall not be convicted of conspiracy unless an overt act is alleged and provedto have been committed by one of the conspirators in furtherance of the conspiracy." Where, ashere, "[a] count . . . charging [a] defendant with conspiracy . . . fail[s]to allege an overt act," that count is jurisdictionally defective and must be dismissed (Peoplev Keiffer, 149 AD2d 974 [1989]; see People v Russo, 57 AD2d 578, 579 [1977]).While the overt act "may be the object crime" (People v McGee, 49 NY2d 48, 57 [1979],cert denied sub nom. Waters v New York, 446 US 942 [1980]; see People v Austin, 9 AD3d 369,371 [2004], lv denied 3 NY3d 739 [2004]), here the count charging defendant withconspiracy does not set forth that the overt act was in fact committed. We reject the People'scontention that the elements of the overt act were incorporated into the conspiracy count of theindictment by the reference to Penal Law § 105.15 in that count (see generally Peoplev D'Angelo, 98 NY2d 733, 735 [2002]). Penal Law § 105.15 does not state that anovert act must be pleaded and proved. Rather, that requirement with respect to the crime ofconspiracy is found in Penal Law § 105.20. We reject the People's further contention thatthe defect in the indictment may be cured by incorporating the allegations in the bill ofparticulars into the indictment. While it is well settled that a bill of particulars may cure deficitsin the factual allegations of an indictment (see generally People v Iannone, 45 NY2d589, 597-600 [1978]), the defect in this case is the failure to allege a material element of thecrime charged. That defect is jurisdictional, mandating dismissal of the conspiracy count of theindictment (see id. at 600-601), and we therefore modify the judgment accordingly.[*2]
Turning to the remaining contentions of defendant, weconclude that County Court did not abuse or improvidently exercise its discretion in denying hismotion seeking funds to retain a jury consultant (see People v Koberstein, 262 AD2d1032, 1033 [1999], lv denied 94 NY2d 798 [1999]; see generally People v Cahill, 2 NY3d 14, 44 n 11 [2003]).Defendant failed to establish that the retention of such an expert was necessary under thecircumstances of this case (see generally County Law § 722-c; Koberstein,262 AD2d at 1033).
Contrary to the further contentions of defendant, the court properly admittedVentimiglia evidence as "circumstantial corroborating evidence of identity" (Peoplev Jones, 276 AD2d 292, 292 [2000], lv denied 95 NY2d 965 [2000]; see People v Robinson, 28 AD3d1126, 1128 [2006], lv denied 7 NY3d 794 [2006]), and the court properly refused toinstruct the jury that two witnesses were accomplices as a matter of law (see generally People v Caban, 5 NY3d143, 152-153 [2005]; People v Basch, 36 NY2d 154, 157 [1975]). In addition, weconclude that the court did not abuse its discretion in permitting the People's expert to give atutorial on blood spatter evidence, inasmuch as that testimony tended to aid the jury inconsidering and evaluating the expert's conclusions concerning the blood spatter evidencepresented at trial (see generally People v Lee, 96 NY2d 157, 162 [2001]).
The contention of defendant that he was denied his right to effective assistance of counselbased on defense counsel's advice that he refrain from testifying at trial " 'implicates strategicdiscussions between defendant and [defense] counsel that are dehors the record,' and thus thatcontention is not reviewable on direct appeal" (People v Prince, 5 AD3d 1098, 1099 [2004], lv denied 2NY3d 804 [2004]). We further conclude that defendant was not denied effective assistance ofcounsel when defense counsel stipulated to a prima facie case of conspiracy in order to avoidlengthy offers of proof similar to those offered in the trial of a coconspirator (see People v Johnson, 30 AD3d1042, 1043 [2006], lv denied 7 NY3d 790 [2006], reconsideration denied 7NY3d 902 [2006]; People v Brown, 175 AD2d 210, 211 [1991]). In any event,"defendant has not demonstrated 'the absence of strategic or other legitimate explanations for[defense] counsel's' stipulation" (Johnson, 30 AD3d at 1043, quoting People vRivera, 71 NY2d 705, 709 [1988]).
We reject the contention of defendant that the evidence is not legally sufficient to support themurder conviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]) and,viewing the evidence in light of the elements of murder in the first degree as charged to the jury(see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict with respect to that crime is not against theweight of the evidence (see generally Bleakley, 69 NY2d at 495). Finally, we concludethat the sentence with respect to the murder conviction is not unduly harsh or severe.Present—Hurlbutt, J.P., Martoche, Fahey, Carni and Pine, JJ.