| People v Gaston |
| 2013 NY Slip Op 01687 [104 AD3d 1206] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v VictorGaston, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered January 19, 2011. The judgment convicted defendant, upon a jury verdict, ofmurder 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 jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]), defendant contends that the17-year preindictment delay violated his constitutional right to a speedy trial. We rejectthat contention. In examining the Taranovich factors (People vTaranovich, 37 NY2d 442, 445 [1975]), we conclude that, although the 17-yearpreindictment delay was substantial, the nature of the charge was serious, and defendantremained at liberty until he was indicted. Moreover, the People met their burden ofestablishing a good-faith basis for the delay (see People v Decker, 13 NY3d 12, 14-16 [2009]; People v Chatt, 77 AD3d1285, 1285 [2010], lv denied 17 NY3d 793 [2011]). In particular, theyestablished that there was insufficient evidence to charge defendant shortly after thecrimes occurred, and it was not until a witness gave new information to the police thatidentified defendant as the perpetrator and DNA testing was completed that the Peoplebrought the charges against defendant. While the delay may have caused some degree ofprejudice to defendant, " 'a determination made in good faith to delay prosecution forsufficient reasons will not deprive defendant of due process even though there may besome prejudice to defendant' " (Decker, 13 NY3d at 14).
Defendant further contends that his right to be tried and convicted of only thosecrimes and upon only those theories charged in the indictment was violated (seegenerally People v Grega, 72 NY2d 489, 495-496 [1988]). We reject that contention.The indictment here charged defendant with causing the victim's death "by stabbing andbeating her," and the evidence at trial established that the victim died as a result of thestab wounds. We conclude that the fact that the indictment included the "beating"allegation does not require reversal (see generally People v Charles, 61 NY2d321, 327-328 [1984]; People v Rooney, 57 NY2d 822, 823 [1982]). Defendantfailed to preserve for our review his further contentions that County Court failed toadminister the requisite oath to the prospective jurors pursuant to CPL 270.15 (1) (a) (see People v Schrock, 73AD3d 1429, 1432 [2010], lv denied 15 NY3d 855 [2010]; People v Dickens, 48 AD3d1034, 1034 [2008], lv denied 10 [*2]NY3d958 [2008]) and violated his right to trial by jury when certain exhibits were received inevidence in the jury's absence (see CPL 470.05 [2]). We decline to exercise ourpower to review those contentions as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
Defendant's contention that the evidence is legally insufficient to support theconviction is preserved for our review only to the extent that he contends that thetestimony of the main prosecution witness was incredible as a matter of law (seePeople v Gray, 86 NY2d 10, 19 [1995]). We reject that contention (see People vMoore [appeal No. 2], 78 AD3d 1658, 1659-1660 [2010], lv denied 17NY3d 798 [2011]). It cannot be said that his testimony was "manifestly untrue,physically impossible, contrary to experience, or self-contradictory" (People v Harris, 56 AD3d1267, 1268 [2008], lv denied 11 NY3d 925 [2009]). Viewing the evidencein light of the elements of the crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's further contention that the verdict isagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]).
Defendant contends that he was denied a fair trial by the cumulative effect of allegederrors, but almost all of the alleged errors have not been preserved for our review(see CPL 470.05 [2]). In any event, we reject that contention (see People v Gonzalez, 52AD3d 1228, 1229 [2008], lv denied 11 NY3d 788 [2008]; People v Wurthmann, 26AD3d 830, 831 [2006], lv denied 7 NY3d 765 [2006]). We rejectdefendant's further contention that he received ineffective assistance of counsel. Viewingthe evidence, the law, and the circumstances of this case, in totality and as of the time ofthe representation, we conclude that defense counsel provided meaningful representation(see generally People v Baldi, 54 NY2d 137, 147 [1981]). Finally, the sentence isnot unduly harsh or severe. Present—Scudder, P.J., Centra, Lindley, Sconiers andMartoche, JJ.