| People v Harper |
| 2015 NY Slip Op 07064 [132 AD3d 1230] |
| October 2, 2015 |
| Appellate Division, Fourth Department |
[*1](October 2, 2015)
| The People of the State of New York, Respondent, vBrandon E. Harper, Appellant. |
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of counsel), fordefendant-appellant.
Brandon E. Harper, defendant-appellant pro se.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.),rendered September 4, 2012. The judgment convicted defendant, upon a jury verdict, ofmurder in the first degree, murder in the second degree (two counts) and attemptedrobbery in the first degree.
It is hereby ordered that the judgment so appealed from is modified as a matter ofdiscretion in the interest of justice and on the law by reversing the conviction ofattempted robbery in the first degree, vacating the sentence imposed thereon, anddismissing that count of the indictment.
Memorandum: On appeal from a judgment convicting him, following a jury trial, ofone count of murder in the first degree (Penal Law § 125.27 [1] [a] [vii];[b]), two counts of murder in the second degree (§ 125.25 [1], [3]) and onecount of attempted robbery in the first degree (§§ 110.00, 160.15 [2]),defendant contends, inter alia, that the conviction is not supported by legally sufficientevidence and that the verdict is against the weight of the evidence. With respect to thesufficiency of the evidence, defendant contends that there is insufficient evidence that thekilling was in furtherance of an attempted robbery or that an attempted robbery evenoccurred. Specifically, defendant contends that there was no proof to corroboratedefendant's admission that the homicide occurred during an attempted robbery. Inasmuchas defendant did not move to dismiss the first count of the indictment, chargingdefendant with murder in the first degree, on the ground that there was insufficientevidence of an attempted robbery and did not move to dismiss the attempted robberycount on the ground that defendant's admission was not corroborated, defendant hasfailed to preserve for our review those contentions with respect to those counts of theindictment (see People v Gray, 86 NY2d 10, 19 [1995]). He did, however,preserve those contentions for our review with respect to the felony murder count of theindictment, and we exercise our power to review the unpreserved contentions as a matterof discretion in the interest of justice (see CPL 470.15 [6] [a]).
"A person may not be convicted of any offense solely upon evidence of a confessionor admission made by him [or her] without additional proof that the offense charged hasbeen committed" (CPL 60.50; see generally People v Chico, 90 NY2d 585,589-590 [1997]). With respect to the counts of murder in the first degree and felonymurder, it is well settled that "CPL 60.50 does not require corroboration of defendant'sconfession to the underlying predicate felony" to sustain a conviction of murder in thefirst degree or felony murder, when the charge is based on a murder committed in thecourse of and in furtherance of one of many enumerated felonies (People v Davis,46 NY2d 780, 781 [1978]; see People v Daley, 47 NY2d 916, 917 [1979],rearg denied 48 NY2d 882 [1979]; People v Lytton, 257 NY 310,313-314 [1931]; People vAlexander, 51 AD3d 1380, 1382 [2008], lv denied 11 NY3d 733[2008]). "The effect of the confession corroboration statute is to require proof of thecorpus delicti" (People v Murray, 40 NY2d 327, 331 [1976], rearg denied40 NY2d 1080 [1976], cert denied 430 US [*2]948 [1977]). With felony murder and murder in the firstdegree, the corpus delicti is a death resulting from someone's criminality, i.e., a death thatdid not occur by suicide, disease or accident (see id. at 332-333; Lytton,257 NY at 313-314). The fact that the victim was found dead as the result of a gunshotwound is sufficient corroboration (see People v Hamilton, 121 AD2d 395, 396[1986]).
The same analysis does not apply to the underlying felony itself. Where, as here,there is no corroboration of a defendant's confession with respect to the underlyingfelony, that count of the indictment charging the defendant with the underlying felonymust be dismissed (see People v Velez, 122 AD2d 178, 178-179 [1986], lvdenied 70 NY2d 658 [1987]; see also Davis, 46 NY2d at 781;Murray, 40 NY2d at 330-331). Here, as in Velez, there was no" 'additional proof that the offense [of attempted robbery] ha[d] beencommitted' " (id. at 178, quoting CPL 60.50). We therefore modify thejudgment accordingly.
Contrary to defendant's further contention, the verdict is not against the weight of theevidence on the issues of his identity as the shooter and his intent to kill the victim(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). In our view, "therewas ample circumstantial evidence establishing defendant's identity as the shooter"(People v Moore [appeal No. 2], 78 AD3d 1658, 1659 [2010], lv denied17 NY3d 798 [2011]; seePeople v Rivera, 112 AD3d 1288, 1289 [2013], lv denied 23 NY3d1024 [2014]), as well as his intent to kill. "[I]t should be obvious that the more thedefendant shoots . . . the victim, the more clearly intentional is thehomicide" (People v Payne,3 NY3d 266, 272 [2004], rearg denied 3 NY3d 767 [2004]). Here,the evidence established that there were multiple shots fired at the victim. We thusconclude that defendant's "criminal intent was readily inferable from his conduct" (People v Guy, 93 AD3d877, 881 [2012], lv denied 19 NY3d 961 [2012]; see Payne, 3 NY3dat 272).
Defendant contends that he was denied effective assistance of counsel based ondefense counsel's failure to move to preclude defendant's written confession and failureto raise certain contentions in moving to suppress defendant's statements. We reject thatcontention. There is no dispute that neither the initial CPL 710.30 notice nor the revisedCPL 710.30 notice referenced defendant's written statement. While preclusion may havebeen warranted (see People v Phillips, 183 AD2d 856, 858 [1992], lvdenied 80 NY2d 908 [1992]), defense counsel made the strategic decision to pursuesuppression of the statement, rendering the statement admissible at trial (see People vLane, 132 AD2d 855, 856 [1987], lv denied 70 NY2d 801 [1987]). We are"not prepared to say that [defense counsel's] decision to proceed with the motion tosuppress [instead of a motion to preclude] deprived his client of the effective assistanceof counsel" (People vBorthwick, 51 AD3d 1211, 1216 [2008], lv denied 11 NY3d 734[2008]). In any event, "[d]efendant's assertion of an ineffective assistance of counselclaim based on defense counsel's strategic decision to seek suppression of statementsinstead of moving to preclude the statements based on the People's failure to provide aCPL 710.30 notice require[s] a CPL 440.10 motion in order to afford defense counsel anopportunity to explain his strategy" (People v Milsner, 34 Misc 3d 150[A], 2011 NY Slip Op52496[U], *2 [2011], lv denied 18 NY3d 884 [2012]; see People v Gross, 21 AD3d1224, 1225 [2005]).
Defendant further contends in his main brief and his pro se supplemental brief thatdefense counsel was ineffective in failing to pursue suppression of thepost-Miranda statements on the grounds that there was a single, continuous chainof events and that the statements were obtained as a result of a pretextual arrest fortrespass. Those contentions lack merit. First, the evidence at the Huntley hearingestablished that there was a "definite, pronounced break in the interrogation" (Peoplev Chapple, 38 NY2d 112, 115 [1975]). There was over one hour between the initialMiranda violation and the issuance of Miranda warnings, which werefollowed by the post-Miranda statements. Different officers were involved, andthere was a change in location (see People v Paulman, 5 NY3d 122, 130-131 [2005]; People v Heck, 103 AD3d1140, 1142 [2013], lv denied 21 NY3d 1074 [2013]; People v Parker, 50 AD3d1607, 1607 [2008], lv denied 11 NY3d 792 [2008]; cf. People vBethea, 67 NY2d 364, 366-368 [1986]; Chapple, 38 NY2d at 115).Moreover, "the brevity of the initial exchange is significant" (People v White, 10 NY3d286, 292 [2008], cert denied 555 US 897 [2008]). Second, defendant's arrestfor a minor offense "cannot be characterized as a 'sham' merely because, after [defendant]was taken into custody, the police were more interested in questioning him about adifferent and graver crime" (People v Fulton, 257 AD2d 774, 775 [1999], lvdenied 93 NY2d 1018 [1999]; see People v Clarke, 5 AD3d 807, 810 [2004], lvdenied 2 NY3d 797 [2004]; cf. People v Burley, 60 AD2d 973, 973-974[1978]). We thus conclude that defendant has failed to establish that defense counsel wasineffective in failing to seek suppression on those grounds, inasmuch as "[t]here can beno denial of effective assistance of trial counsel arising from counsel's failure to 'make amotion or argument that has little or no chance of success' " (People v Caban, 5 NY3d143, [*3]152 [2005]).
Defendant contends that County Court erred in its charge to the jury when it statedon one occasion that the murder had to occur in the course of or in furtherance ofthe attempted robbery. Defendant failed to object to that misstatement, however, andfailed to preserve for our review his contention that the misstatement lessened thePeople's burden of proof (see Gray, 86 NY2d at 19; People v Roman, 190AD2d 831, 831 [1993], affd 83 NY2d 866 [1994]). In any event, defendant'scontention lacks merit. The court repeatedly instructed the jury that the murder had tooccur in the course of and in furtherance of the attempted robbery, and weconclude that "the charge as a whole adequately conveyed the required standard"(People v Samuels, 99 NY2d 20, 26 [2002]).
Defendant waived any challenge to the court's annotation of the verdict sheetinasmuch as he requested the annotation (see People v Cipollina, 94 AD3d 1549, 1550 [2012], lvdenied 19 NY3d 971 [2012]). In addition, by failing to object to the prosecutor'ssummation, defendant failed to preserve for our review his contention that he was denieda fair trial when the prosecutor misstated the law concerning felony murder (see People v Waterford, 124AD3d 1246, 1247-1248 [2015]; People v Goodman, 190 AD2d 862, 862[1993], lv denied 81 NY2d 971 [1993]). In any event, that contention lacks merit."To the extent that a portion of the prosecutor's summation could be viewed ascontaining a misstatement of law, . . . any prejudice was avoided by thecourt's instructions, which the jury is presumed to have followed" (People v Padin, 121 AD3d628, 629 [2014]; see Waterford, 124 AD3d at 1247-1248).
Contrary to defendant's contention, the court properly allowed the girlfriend of acodefendant to testify concerning statements made by defendant and the codefendantimmediately after the incident. Those statements qualified as both excited utterances (see People v Johnson, 1 NY3d302, 305-306 [2003]; People v Edwards, 47 NY2d 493, 497 [1979]), andadoptive admissions (see People v Campney, 94 NY2d 307, 311-312 [1999]).Defendant further contends that the admission of the codefendant's statements made toand in front of the codefendant's girlfriend violated defendant's right of confrontation.That contention is not preserved for our review, and such a contention, whether based onBruton v United States (391 US 123 [1968]) or Crawford v Washington(541 US 36 [2004]), requires preservation (see People v Kello, 96 NY2d 740,744 [2001]; People vGilocompo, 125 AD3d 1000, 1001 [2015]). In any event, we have revieweddefendant's contention and conclude that it lacks merit. There was no Brutonviolation where, as here, defendant and the codefendant were not tried jointly (seePeople v Baker, 26 NY2d 169, 172-173 [1970]), and there was no Crawfordviolation because the statements were "neither elicited in a formal manner nor elicited byan investigator" (People vPaul, 25 AD3d 165, 170 [2005], lv denied 6 NY3d 757 [2005]).
Finally, we agree with defendant that the certificate of conviction incorrectly recitesthat he was convicted of murder in the first degree as a "murder of a police officer." Thecertificate of conviction must therefore be amended to reflect that he was convictedunder Penal Law § 125.27 (1) (a) (vii) (see e.g. People v Knighton, 109 AD3d 1205, 1206 [2013];People v Jackson, 41 AD3d1268, 1268-1269 [2007], lv denied 10 NY3d 812 [2008], reconsiderationdenied 11 NY3d 789 [2008]).
All concur except Sconiers, J., who is not participating. Present—Scudder,P.J., Carni, Sconiers, Valentino and Whalen, JJ.