| People v Holloway |
| 2012 NY Slip Op 05451 [97 AD3d 1099] |
| July 6, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Phillip Holloway, Appellant. |
—[*1] Phillip Holloway, defendant-appellant pro se. Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.), renderedJuly 20, 2010. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree and criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]) and criminal possession of aweapon in the second degree (§ 265.03 [3]). Defendant's contention that the evidence islegally insufficient to support the conviction on the grounds that the testimony of an allegedaccomplice was both uncorroborated and incredible as a matter of law is not preserved for ourreview because defendant failed to move for a trial order of dismissal on either of those grounds(see People v Sudler, 75 AD3d901, 904 [2010], lv denied 15 NY3d 956 [2010]; People v Story, 68 AD3d 1737, 1738 [2009], lv denied 14NY3d 844 [2010]). Defendant also failed to preserve for our review his contention that theevidence is legally insufficient to support the conviction on the ground that a second allegedaccomplice was actually the shooter and that defendant did not act as his accomplice (see generally People v Molson, 89AD3d 1539, 1539-1540 [2011]), having failed to renew his motion for a trial order ofdismissal on that ground after presenting evidence (see People v Hines, 97 NY2d 56, 61[2001], rearg denied 97 NY2d 678 [2001]). In any event, we reject those contentions(see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
We reject defendant's further contention that his statement to the police in which he admittedshooting the victim was not corroborated. "A person may not be convicted of any offense solelyupon evidence of a confession or admission made by him [or her] without additional proof thatthe offense charged has been committed," but the corroborating proof need not establish thatdefendant committed the offense (CPL 60.50; see People v Fulmore, 91 AD2d 1184[1983]). Here, a witness testified concerning the facts and circumstances of the shooting, and themedical examiner testified that the victim's death was considered a homicide as the result ofmultiple gunshot wounds.[*2]
We further conclude that County Court properly refusedto suppress his inculpatory statements to the police on the ground that they were elicited inviolation of his right to counsel. "[D]efendant failed to meet his ultimate burden by presentingevidence establishing that he was in fact represented by counsel at the time of interrogation, asdefendant contended" (People vHilts, 19 AD3d 1178, 1179 [2005]; see People v Cameron, 6 AD3d 273, 273-274 [2004], lv denied3 NY3d 672 [2004]). Contrary to defendant's contention, the court properly imposedconsecutive sentences (see People vJones, 66 AD3d 1442, 1443 [2009], lv denied 13 NY3d 939 [2010]). Thesentence is not unduly harsh or severe.
Defendant contends in his pro se supplemental brief that his right to counsel was violatedwhen he made his inculpatory statements to the police because his indelible right to counsel hadattached when the felony complaint in this matter was filed, before he made the statements(see generally People v Samuels, 49 NY2d 218, 221-223 [1980]). Although thatcontention is reviewable on appeal even in the absence of preservation (see id. at 221),we are unable to review it because we are unable to discern from the record before us when, ifever, a felony complaint was filed (seegenerally People v McLean, 15 NY3d 117, 119 [2010]). Defendant further contends inhis pro se supplemental brief that he was denied the right to effective assistance of counsel basedon defense counsel's failure to preserve for our review the issue concerning the allegedattachment of his right to counsel upon the filing of the felony complaint, and based on defensecounsel's failure to object when the prosecutor allegedly violated the Rosario rule.Because that contention and the underlying contention concerning the violation of defendant'sright to counsel based on the filing of the felony complaint involve matters outside the record onappeal, they are properly raised by way of a CPL article 440 motion (see People v Johnson, 88 AD3d1293, 1294 [2011]; People vEllis, 73 AD3d 1433, 1434 [2010], lv denied 15 NY3d 851 [2010]).
We have considered defendant's remaining contentions in his main and pro se supplementalbriefs, and we conclude that they are without merit. Present—Smith, J.P., Lindley,Sconiers and Martoche, JJ.