| People v Bakerx |
| 2014 NY Slip Op 01040 [114 AD3d 1244] |
| February 14, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Robert Bakerx, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered June 21, 2011. The judgment convicted defendant, upon a nonjury verdict,of manslaughter in the first degree and criminal possession of a weapon in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a jointnonjury trial with one codefendant (People v Heary, 104 AD3d 1208 [2013], lv denied21 NY3d 943 [2013], reconsideration denied 21 NY3d 1016 [2013]), ofmanslaughter in the first degree (Penal Law § 125.20 [1]) and criminal possessionof a weapon in the second degree (§ 265.03 [3]) (CPW 2d). Defendant contendsthat the evidence is legally insufficient to support his conviction of manslaughter becausethe People failed to meet their burden of disproving his justification defense beyond areasonable doubt (see generally § 25.00 [1]; People v Umali, 10 NY3d417, 425 [2008], rearg denied 11 NY3d 744 [2008], cert denied 556US 1110 [2009]). He further contends that the evidence is legally insufficient to supportthe conviction of CPW 2d because the People failed to establish that he did not possessthe loaded weapon in his home or place of business (Penal Law § 265.03 [3]) orthat he intended to use the weapon against another. Those "contention[s] [are] notpreserved for our review inasmuch as defendant 'did not move for a trial order ofdismissal on th[ose] ground[s]' " (Heary, 104 AD3d at 1209; see generallyPeople v Gray, 86 NY2d 10, 19 [1995]). We reject defendant's further contentionthat he was denied effective assistance of counsel based on defense counsel's failure tomove for a trial order of dismissal on those grounds. "It is well settled that '[a] defendantis not denied effective assistance of trial counsel merely because counsel does not make amotion or argument that has little or no chance of success' . . . Here, therewas no chance that such a motion would have succeeded" (Heary, 104 AD3d at1209, quoting People vStultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]).
Defendant further contends that the evidence is legally insufficient to support theconviction of manslaughter because the People failed to establish the element of intent tocause serious physical injury. Although defendant preserved that contention for ourreview, we conclude that it lacks merit. Such "intent may be inferred from [defendant's]conduct, the surrounding circumstances, and the medical evidence," which establishedthat defendant shot the victim and that the bullet entered the victim through the back,piercing his right lung and aorta (People v Wise, 46 AD3d 1397, 1399 [2007], lvdenied 10 NY3d 872 [2008] [internal quotation marks omitted]; see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]).
Although defendant further contends that Supreme Court erred in failing to considerthe lesser included offense of manslaughter in the second degree (Penal Law §125.15 [1]), we reject that contention. There is no "reasonable view of the evidence [that]would support a finding that the defendant committed such lesser offense but did notcommit the greater" (CPL 300.50 [1]; see generally People v Glover, 57 NY2d61, 63 [1982]). We further conclude, upon viewing the evidence in light of the elementsof the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), that theverdict is not against the weight of the evidence (see Bleakley, 69 NY2d at 495).
Inasmuch as defendant did not join in the application of the codefendant to introduceevidence of the victim's prior bad acts, he did not preserve for our review his contentionthat the court erred in refusing to admit such evidence (see People v Thompson,300 AD2d 1032, 1033 [2002], lv denied 99 NY2d 620 [2003]; People vCook, 286 AD2d 917, 917 [2001], lv denied 97 NY2d 680 [2001]; seegenerally People v Buckley, 75 NY2d 843, 846 [1990]). In any event, thatcontention lacks merit (see Matter of Robert S., 52 NY2d 1046, 1048 [1981])and, therefore, defense counsel was not ineffective in failing to make an argument thathad little or no chance of success (see Heary, 104 AD3d at 1209; seegenerally Stultz, 2 NY3d at 287).
In his pretrial omnibus motion and supplemental motions, defendant soughtsuppression of his statements, physical evidence and DNA evidence contending, interalia, that he was arrested without probable cause. We conclude that the court properlydenied the Dunaway branch of defendant's motions without a hearing. "Given'(1) the face of the pleadings, (2) assessed in conjunction with the context of themotion[s], and (3) defendant's access to information,' defendant's allegations in supportof his motion[s] were too conclusory to warrant a hearing" (People v Lopez, 5 NY3d753, 754 [2005], quoting People v Mendoza, 82 NY2d 415, 426 [1993]; see People v Arokium, 33AD3d 458, 459 [2006], lv denied 8 NY3d 878 [2007]; People v McDowell, 30 AD3d160, 160 [2006], lv denied 7 NY3d 850 [2006]). In any event defendant's"written postarrest statement . . . on its face shows probable cause fordefendant's arrest, and defendant failed to controvert it in his motion papers"(Lopez, 5 NY3d at 754).
Defendant contends for the first time on appeal that the Miranda warningsgiven to him were defective. That contention is not preserved for our review (seePeople v Tutt, 38 NY2d 1011, 1012-1013 [1976]; People v Louisias, 29 AD3d1017, 1018-1019 [2006], lv denied 7 NY3d 814 [2006]) and, in any event, itlacks merit. Although the detective issuing the warnings did not inform defendant that hewould be entitled to "free" counsel if he could not afford counsel, "the Mirandaprophylaxis does not require a 'ritualistic incantation of warnings in any particularlanguage or form' " (People v Snider, 258 AD2d 929, 930 [1999], lvdenied 93 NY2d 979 [1999]). "The inquiry is simply whether the warningsreasonably 'conve[y] to [a suspect] his rights as required by Miranda' "(Duckworth v Eagan, 492 US 195, 203 [1989]; see Louisias, 29 AD3d at1019). Here, defendant was informed that he would receive appointed counsel if hecould not afford counsel and, therefore, the warnings given to defendant reasonablyapprised him of his rights.
Defendant also contends for the first time on appeal that he was denied his right tocounsel because, although he was not in custody on a prior charge, he was represented bycounsel on that charge and it was related to the charges for which he was in custody(see People v Vella, 21 NY2d 249, 251 [1967]). "[T]he rule 'authorizing reviewof unpreserved constitutional right-to-counsel claims' has been applied 'only when theconstitutional violation was established on the face of the record' " (People v McLean, 15 NY3d117, 121 [2010], quoting People v Ramos, 99 NY2d 27, 37 [2002]). Here,because "the record does not make clear, irrefutably, that a right to counsel violation hasoccurred, the claimed violation can be reviewed only on a post-trial motion under CPL440.10, not on direct appeal" (id.). Defendant's further contention that defensecounsel was ineffective in failing to pursue that theory of suppression also involvesmatters outside the record on appeal and thus is properly raised by way of a CPL 440.10motion (see People v Rivera, 71 NY2d 705, 709 [1988]).
Defendant contends that photo arrays shown to two witnesses were undulysuggestive because of the differences in the attire of the persons depicted and in thecomposition of the photographs. We reject that contention inasmuch as those differenceswere "not sufficient to create a substantial likelihood that the defendant would be singledout for identification" (People v Chipp, 75 NY2d 327, 336 [1990], certdenied 498 US 833 [1990]). For the first time on appeal, defendant also contendsthat the photo arrays were unduly suggestive because he was the only person with amohawk hairstyle in both arrays. That contention was not raised in the hearing court and,therefore, is not preserved for our review (see People v Johnson, 306 AD2d 214,215 [2003], lv denied 100 NY2d 621 [2003]; People v Berry, 201 AD2d489, 489-490 [1994], lv denied 83 NY2d 869 [1994]). We decline to exerciseour power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
Finally, we reject defendant's challenges to the severity of the sentence and thecourt's remarks at sentencing. Present—Scudder, P.J., Fahey, Peradotto, Carni andValentino, JJ.