| People v Howard |
| 2012 NY Slip Op 09230 [101 AD3d 1749] |
| December 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Earl Howard,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered January 4,2011. The judgment convicted defendant, upon a nonjury verdict, of murder in the second degree andcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a nonjury verdict of murder in thesecond degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the seconddegree (§ 265.03 [3]), defendant contends that the verdict is against the weight of the evidence.We reject that contention. Viewing the evidence in light of the elements of the crimes in this nonjury trial(see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that, although a different verdict would not have beenunreasonable, County Court did not fail to give the evidence the weight it should be accorded (see People v Johnson, 94 AD3d 1563,1564 [2012], lv denied 19 NY3d 962 [2012]; see generally People v Bleakley, 69NY2d 490, 495 [1987]). Three witnesses who had lived on the same street with defendant testified attrial that they saw defendant shoot the victim. Another witness, who previously had been defendant'sdrug-dealing associate, testified that defendant admitted to him that he shot the victim, and the Peoplealso presented uncontroverted circumstantial evidence of defendant's consciousness of guilt, i.e., that hemoved to California several days after the shooting (see People v Westbrooks, 90 AD3d 1536, 1536 [2011], lv denied18 NY3d 963 [2012]). Although defendant challenges the credibility of the prosecution witnesseson various grounds, the court stated that it found the testimony of those witnesses to be "unequivocaland rather compelling." It is well settled that " 'credibility determinations by the court . . .are entitled to great deference' " (People vWall, 48 AD3d 1107, 1108 [2008], lv denied 11 NY3d 742 [2008]), and minorinconsistencies in the testimony of certain prosecution witnesses do not render their testimony incredibleas a matter of law (see People v Coble,94 AD3d 1520, 1522 [2012], lv denied 19 NY3d 995 [2012]).
We also reject defendant's contention that he received ineffective assistance of counsel because histrial attorney failed to object to the introduction of various photographs of defendant depicting him, indefendant's words, as a "gleeful, defiant outlaw." "To prevail on a claim of ineffective assistance ofcounsel, it is incumbent on defendant to demonstrate the absence of [*2]strategic or other legitimate explanations" for defense counsel's allegeddeficiency (People v Rivera, 71 NY2d 705, 709 [1988]), and defendant failed to do so here.Indeed, the record establishes that the court in this nonjury trial was aware from other evidence,including defendant's own testimony, that defendant was a drug dealer with a prior criminal record,which may have been the basis for defense counsel's failure to object to the admissibility of thephotographs. In any event, even assuming, arguendo, that it was error for defense counsel not to objectto the photographs, we conclude that the single alleged failure was not "sufficiently egregious andprejudicial as to compromise . . . defendant's right to a fair trial" (People v Caban, 5 NY3d 143, 152[2005]; see People v Cosby, 82 AD3d63, 67 [2011], lv denied 16 NY3d 857 [2011]).
Contrary to defendant's further contention, the court did not err in allowing a prosecution witness totestify that defendant told the witness that he returned to Buffalo from California because "the detectivescame out there to [defendant's] house so he came back." As the People assert, that testimony, althoughhearsay, was admissible "as an admission inconsistent with defendant's innocence" (People vMcCray, 227 AD2d 900, 900 [1996], lv denied 89 NY2d 866 [1996]). The fact thatdefendant returned to Buffalo after the police discovered his location in California tends to support theprosecution's theory that defendant fled to California after the shooting to avoid arrest, and that he didnot go there simply because his mother thought that he needed a "different environment," as the mothertestified on defendant's behalf at trial.
Considering the brutal and senseless nature of defendant's killing of the victim, we rejectdefendant's challenge to the severity of the sentence. Finally, we have reviewed defendant's remainingcontentions and conclude that they lack merit. Present—Smith, J.P., Peradotto, Lindley,Valentino and Whalen, JJ.