| People v Carson |
| 2015 NY Slip Op 02646 [126 AD3d 1537] |
| March 27, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMatthew M. Carson, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.),rendered August 26, 2010. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree and criminal possession of a weapon in the second degree(two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of murder in the second degree (Penal Law § 125.25 [1]) and twocounts of criminal possession of a weapon in the second degree (§ 265.03[1] [b]; [3]). The People established at trial that the victim and a friend were standingnear the victim's residence when defendant approached them. Defendant and the victimhad a heated verbal exchange that resulted in defendant pulling a gun on the victim.Defendant then left the area, but he reappeared a few minutes later and fired three shots,one of which struck and killed the victim. Both altercations were observed by twoeyewitnesses at the YMCA located across the street from the victim's residence. Thealtercations were also recorded by a video camera located outside a store that had a viewof the YMCA and the sidewalk in front of the victim's residence. Viewing the evidenceat trial in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Contraryto defendant's contention, any discrepancies between defendant's appearance and theeyewitness testimony at trial presented mere credibility issues for the jury (see People v Wilkins, 75 AD3d847, 848 [2010], lv denied 15 NY3d 857 [2010]; People v Smith,267 AD2d 407, 408 [1999]). We conclude that "this is not an appropriate case [for thisCourt] to substitute [its] reliability determinations for those of the jury" (People v Davis, 115 AD3d1167, 1168 [2014], lv denied 23 NY3d 1019 [2014]).
Defendant failed to preserve for our review his contention that the photo arrayprocedure was unduly suggestive because his photo presented a substantially narrowerface than the other individuals displayed in the array inasmuch as he did not make thatargument at the Wade hearing (see People v Bakerx, 114 AD3d 1244, 1247-1248 [2014],lv denied 22 NY3d 1196 [2014]; People v Bell, 19 AD3d 1074, 1075 [2005], lvdenied 5 NY3d 803 [2005], reconsideration denied 5 NY3d 850 [2005]). Wesimilarly conclude that defendant failed to preserve for our review his contention that theprospective jurors were not given the requisite oath pursuant to CPL 270.15 (1) (a) (see People v Gaston, 104AD3d 1206, 1207 [2013], lv denied 22 NY3d 1156 [2014]; People v Schrock, 73 AD3d1429, 1432 [2010], lv denied 15 NY3d 855 [2010]). We decline to exerciseour power to review those contentions as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
We also conclude that defendant "knowingly, intelligently and voluntarily waived hisright to be present at sidebar conferences, as evidenced by the written waiver signed bydefendant, defense counsel, and [Supreme] [C]ourt" (People v Conway, 277AD2d 1020, 1020 [2000], lv denied 96 NY2d 782 [2001]; see People v Jones, 111 AD3d1148, 1149-1150 [2013], lv denied 23 NY3d 1063 [2014], [*2]24 NY3d 1044 [2014]), and we thus reject his contentionthat his exclusion from a sidebar conference requires reversal. In any event, thatcontention is without merit because there can be no violation of defendant's right to bepresent where, as here, a prospective juror was excused for cause by the court (seePeople v Maher, 89 NY2d 318, 325 [1996]; People v Jordan, 88 AD3d 580, 580 [2011], lvdenied 18 NY3d 884 [2012]; cf. People v Davidson, 89 NY2d 881, 882-883[1996]). Finally, we reject defendant's contention that he received ineffective assistanceof counsel. Viewing the evidence, the law, and the circumstances of the case, in totalityand as of the time of the representation, we conclude that defense counsel providedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147[1981]). Present—Smith, J.P., Valentino, Whalen and DeJoseph, JJ.