| People v Howard |
| 2012 NY Slip Op 01007 [92 AD3d 1219] |
| February 10, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ByronHoward, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), renderedJanuary 14, 2010. The judgment convicted defendant, upon a nonjury verdict, of murder in thefirst degree (two counts), murder in the second degree (four counts), burglary in the first degree,arson in the third 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 lawby reversing those parts convicting defendant of murder in the second degree under counts threeand four of the indictment and dismissing those counts and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of,inter alia, two counts of murder in the first degree (Penal Law § 125.27 [1] [a] [viii]; [b])and four counts of murder in the second degree (§ 125.25 [1], [3]). The evidenceestablished that defendant entered the home of his ex-girlfriend and waited for several hours untilshe returned home with her current boyfriend, at which time he shot them both and set her houseon fire. Viewing the evidence in light of the elements of the crimes in this bench trial (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We reject the contention ofdefendant that he was denied effective assistance of counsel based on defense counsel's failure toobject to certain hearsay testimony, his elicitation of hearsay testimony on cross-examination, orhis failure to call a certain witness. Rather, viewing the evidence, the law and the circumstancesof this case, in totality and as of the time of the representation, we conclude that defendantreceived meaningful representation (see generally People v Baldi, 54 NY2d 137, 147[1981]).
We agree with defendant that County Court erred in allowing a fire marshall to testifyregarding six categories of motivation for setting a fire, including revenge and crimeconcealment. The People failed to demonstrate that those categories are "generally accepted inthe scientific community . . . or that the subject is beyond the ordinary ken of the[trier of fact]" (People v Avellanet, 242 AD2d 865, 865 [1997], lv denied 91NY2d 868 [1997]). We conclude, however, that the error is harmless inasmuch as the evidence ofdefendant's guilt is overwhelming and there is no significant probability that, absent the error, thecourt would have acquitted defendant (see id.; [*2]seegenerally People v Crimmins, 36 NY2d 230, 241-242 [1975]). Defendant's furthercontention that the fire marshall improperly testified that he eliminated all causes of the fireexcept the "human element" is not preserved for our review (see CPL 470.05 [2]) and, inany event, that contention is without merit (see generally People v Rivers, 18 NY3d 222 [2011]).
As the People correctly concede, however, those parts of the judgment convicting defendantof murder in the second degree under counts three and four of the indictment must be reversedand those counts dismissed because they are inclusory concurrent counts of the two murder in thefirst degree counts (see CPL 300.40 [3] [b]; People v Pierre, 37 AD3d 1172 [2007], lv denied 8 NY3d989 [2007]; see generally People vMiller, 6 NY3d 295, 300-303 [2006]). We therefore modify the judgment accordingly.In addition, we note that the certificate of conviction incorrectly recites that defendant wasconvicted of criminal possession of a weapon in the second degree under Penal Law §265.03 (1), and it must therefore be amended to reflect that he was convicted of that crime underPenal Law § 265.03 (3) (seePeople v Saxton, 32 AD3d 1286 [2006]). We have considered defendant's remainingcontentions and conclude that they are without merit. Present—Centra, J.P., Fahey,Peradotto, Carni and Martoche, JJ.