| People v Stephenson |
| 2013 NY Slip Op 01941 [104 AD3d 1277] |
| March 22, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vMelvin L. Stephenson, Appellant. |
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Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.),rendered January 31, 2011. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree, manslaughter in the first degree and robbery in the firstdegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofmurder in the second degree (Penal Law § 125.25 [3]), manslaughter in the firstdegree (§ 125.20 [1]), and robbery in the first degree (§ 160.15 [1]),defendant contends that the evidence is legally insufficient to establish his commission ofany of the charged crimes. Defendant further contends that the verdict is against theweight of the evidence. Although defendant failed to preserve for our review hischallenge to the legal sufficiency of the evidence, we " 'necessarily review the evidenceadduced as to each of the elements of the crimes in the context of our review ofdefendant's challenge regarding the weight of the evidence' " (People v Stepney, 93 AD3d1297, 1298 [2012], lv denied 19 NY3d 968 [2012]; see People v Danielson, 9NY3d 342, 349 [2007]; People v Francis, 83 AD3d 1119, 1120 [2011], lvdenied 17 NY3d 806 [2011]).
Viewing the evidence in the light most favorable to the People, as we must in thecontext of a legal sufficiency analysis (see People v Contes, 60 NY2d 620, 621[1983]), we conclude that the evidence is legally sufficient to establish that defendantforcibly stole money from the victim and that, during the course and commission of thatrobbery, he strangled the victim to death. We further conclude that, when viewed in lightof the elements of the crimes as charged to the jury (see Danielson, 9 NY3d at349), the verdict is not against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Although there was no direct evidence thatdefendant killed the victim or stole money from him, there was ample circumstantialevidence of defendant's guilt, and it is well settled that circumstantial evidence is "not adisfavored form of proof and, in fact, may be stronger than direct evidence when itdepends upon 'undisputed evidentiary facts about which human observers are less likelyto err . . . or to distort' " (People v Geraci, 85 NY2d 359, 369[1995]).
The victim, an 80-year-old man who lived alone in an apartment in the same buildingwhere defendant resided, was found dead inside his apartment by a Meals-on-Wheelsvolunteer [*2]who brought him food at approximately11:00 a.m. on December 1, 2009. The victim had been strangled and had several opencuts or abrasions on his body. The aide who assisted the victim with his bathing andother needs testified that the victim had no cuts or abrasions on his body when she gavehim a shower the previous day. According to the Medical Examiner, the victim waskilled sometime between 9:00 that morning and 8:30 the night before. There were dropsof the victim's blood on the jacket defendant was wearing when he was questioned by thepolice on December 1, 2009, and the victim's DNA was found on a pair of gloves indefendant's pocket.
In addition, several residents of the apartment building testified that they observeddefendant inside the victim's apartment the night before his body was found, and oneresident heard the two men arguing over money. Defendant's former girlfriend testifiedthat, several weeks before the victim was killed, defendant said that he was tired of being"broke" and that he could take money from the "old man downstairs" while he wassleeping. Another witness testified that defendant told him in mid-November 2009 thathe was going to kill the victim.
The People also introduced evidence that the victim had more than $100 in his walleton November 30, 2009, when he was last seen alive, and that his wallet was empty whenhe was found dead the following morning. During the day on November 30, 2009,defendant, who was unemployed, had no money. He attempted to sell something that dayto another resident in the building, saying that he needed money to purchase minutes forhis cell phone. The resident declined to buy anything from defendant. The next morning,i.e., the same morning that the victim's body was found, defendant purchased a carton ofcigarettes and a 24-pack of beer, among other items. He also had minutes on his cellphone. When questioned by the police about where he got the money to pay for the beerand cigarettes, defendant said that he won $100 from a lottery ticket he purchased andcashed at the store on December 1, 2009. The police learned that no lottery tickets werecashed at that store that day for more than $20. In light of the above evidence, we cannotconclude that the evidence is legally insufficient or that the verdict is against the weightof the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant's remaining contention is that defense counsel was ineffective for failingto preserve for our review his challenge to the legal sufficiency of the evidence. Becausewe have reviewed the sufficiency of the evidence in determining whether the verdict isagainst the weight of the evidence, defendant was not prejudiced by defense counsel'sfailure to preserve the sufficiency contention. Present—Scudder, P.J., Centra,Lindley, Sconiers and Martoche, JJ.