| People v Backus |
| 2009 NY Slip Op 08387 [67 AD3d 1428] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Cody Backus,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered January 2, 2008. The judgment convicted defendant, upon a jury verdict, of murder inthe second degree, burglary in the first degree and attempted robbery in the first degree (twocounts).
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, inter alia,murder in the second degree (Penal Law § 125.25 [3] [felony murder]) and burglary in thefirst degree (§ 140.30 [2]), defendant contends that the felony murder count did not chargea "cognizable crime" under the circumstances of this case. Despite the language in whichdefendant frames his contention, we conclude that he is in effect contending that the felonymurder count is duplicitous. Such a contention must be preserved for our review (see People v Sponburgh, 61 AD3d1415 [2009], lv denied 12 NY3d 929 [2009]; People v Pyatt, 30 AD3d 265, 265-266 [2006], lv denied 7NY3d 869 [2006]), and defendant failed to do so. We decline to exercise our power to reviewthat contention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]). Defendant contends that preservation is not required in any event because the indictmentwas jurisdictionally defective. We reject that contention. "[A]n indictment is jurisdictionallydefective only if it does not effectively charge the defendant with the commission of a particularcrime" (People v Iannone, 45 NY2d 589, 600 [1978]; see People v Ray, 71NY2d 849 [1988]) and, here, the count of the indictment that is the subject of defendant'schallenge expressly charges defendant only with felony murder.
Inasmuch as defendant consented to the supplemental instruction given by Supreme Court inresponse to a jury note concerning telephone records, he "has waived his present challenge to the[supplemental] instruction" (People vScott, 60 AD3d 1396, 1397 [2009], lv denied 12 NY3d 821 [2009]). Contrary todefendant's further contentions, we conclude that there is sufficient evidence corroborating thetestimony of the accomplice (see generally People v Breland, 83 NY2d 286, 293-294[1994]; People v Daniels, 37 NY2d 624, 629-630 [1975]), and that the evidence islegally sufficient to support the conviction (see generally People v Bleakley, 69 NY2d490, 495 [1987]). We reject the further contention of defendant that he was denied effectiveassistance of counsel based, inter alia, upon defense counsel's failure to [*2]make certain motions or to interpose certain objections (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]). "A defendant is not denied effectiveassistance of trial counsel merely because counsel does not make a motion or argument that haslittle or no chance of success" (People vStultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]).
We have considered defendant's remaining contentions and conclude that they are withoutmerit. Present—Martoche, J.P., Smith, Fahey, Carni and Pine, JJ.