| People v Barboni |
| 2011 NY Slip Op 09442 [90 AD3d 1548] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jay J. Barboni,Appellant. |
—[*1] Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), renderedSeptember 4, 2009. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree and manslaughter in the first degree.
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 [4] [depraved indifference murder]) andmanslaughter in the first degree (§ 125.20 [4]), defendant contends that he was deniedeffective assistance of counsel during jury selection. We reject that contention. "The allegederror[ ] in defense counsel's representation [during jury selection is a] mere disagreement[ ] withdefense counsel's . . . tactics, and defendant has failed to establish 'the absence ofstrategic or other legitimate explanations' for defense counsel's alleged shortcomings" (People v Martin, 79 AD3d 1793,1793 [2010], lv denied 16 NY3d 861 [2011], quoting People v Rivera, 71 NY2d705, 709 [1988]).
We also reject defendant's challenge to the legal sufficiency of the evidence supporting theconviction of depraved indifference murder (see generally People v Bleakley, 69 NY2d490, 495 [1987]). Contrary to the contention of defendant, the evidence is legally sufficient toestablish that he possessed the requisite culpable mental state to support that conviction (see People v Varmette, 70 AD3d1167, 1169-1171 [2010], lv denied 14 NY3d 845 [2010]; People v Griffin, 48 AD3d 1233,1234-1235 [2008], lv denied 10 NY3d 840 [2008]; People v Bowman, 48 AD3d 178, 184-185 [2007], lvdenied 10 NY3d 808 [2008]; Peoplev Maddox, 31 AD3d 970, 971-972 [2006], lv denied 7 NY3d 868 [2006]; cf. People v Lewie, 17 NY3d 348,359-360 [2011]; see generally People vSuarez, 6 NY3d 202, 210-213 [2005]). Indeed, the evidence establishes that, on the daythe crimes occurred, the victim, a 15-month-old child, was happy and healthy before he was leftalone with defendant. The expert medical testimony presented by the People demonstrates thatthe child sustained at least five traumatic blows to the head, which led to brain swelling thatcaused his death, and that he sustained other injuries that would have resulted in legal blindnesshad he survived. The injuries at issue were caused by trauma that occurred approximately twohours before the child's death, during which time he was in the sole care of defendant.[*2]
The record further establishes that the child's sufferingyielded an apathetic response from defendant. Around 8:00 p.m. on the night of the child's death,defendant telephoned his girlfriend, who was the mother of the child, and informed her that sheneeded to come home because the child was not breathing. When the mother arrivedapproximately two minutes later, she ran past defendant, who was in the kitchen of her apartmentand said to the mother that "he didn't know what happened." When the mother reached the child'scrib on the second floor of the apartment, she observed that the child was blue and not breathing.Although defendant did not seek medical assistance for him, the child was transported to ahospital, where he was pronounced dead at 8:20 p.m. The evidence, viewed in the light mostfavorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), is also legallysufficient to support the conviction of manslaughter in the first degree (see generallyBleakley, 69 NY2d at 495). Viewing the evidence in light of the elements of the crimes ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against theweight of the evidence (see generally Bleakley, 69 NY2d at 495).
We also conclude that there is no merit to defendant's contention that County Court erred inrefusing to suppress certain physical evidence on the ground that it was illegally seized, inasmuchas defendant and the attorney who represented him when he was questioned by the policeconsented to the seizure of the evidence in question (cf. People v Farrell, 42 AD3d 954 [2007]). Defendant furthercontends that he was denied effective assistance of counsel based on that attorney's consent to theseizure. "Even assuming . . . [arguendo, that] the right to effective assistance ofcounsel attached prior to [the seizure of the physical evidence in question] and that suppression isthe appropriate remedy where a [seizure arises from] ineffective assistance of counsel" (People v Carncross, 14 NY3d 319,331 [2010]), we reject defendant's contention inasmuch as he failed to demonstrate the absenceof a strategic explanation for that attorney's alleged shortcomings (see People vBenevento, 91 NY2d 708, 712 [1998]; see generally People v Baldi, 54 NY2d 137,147 [1981]). Present—Fahey, J.P., Peradotto, Lindley, Green and Gorski, JJ.