| People v Moore |
| 2020 NY Slip Op 04277 [185 AD3d 1544] |
| July 24, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Robert L. Moore, III, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (William Clauss of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (John J. DeMarco, J.), renderedJanuary 15, 2016. The judgment convicted defendant upon a jury verdict of murder in the seconddegree, manslaughter in the second degree, attempted robbery in the first degree, criminalpossession of a weapon in the second degree and criminal possession of a firearm.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, murder in the second degree (Penal Law § 125.25 [3]) and attemptedrobbery in the first degree (§§ 110.00, 160.15 [2]). Viewing the evidence inthe light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]),we conclude that the conviction of murder in the second degree and attempted robbery in the firstdegree is supported by legally sufficient evidence (see People v Alexander, 51 AD3d 1380, 1382-1383 [4th Dept2008], lv denied 11 NY3d 733 [2008]). Contrary to defendant's contention, there issufficient corroboration of his recorded statement to a police informant (see CPL 60.50).With respect to the count of murder in the second degree, "[t]he fact that the victim was founddead as the result of a gunshot wound is sufficient corroboration" (People v Harper, 132 AD3d 1230,1231 [4th Dept 2015], lv denied 27 NY3d 998 [2016]). With respect to the count ofattempted robbery in the first degree, in addition to defendant's statement, the People submittedevidence establishing that the victim had met with defendant at the time of the shooting in orderto sell marihuana to defendant, and that the victim's clothing was torn during their brief meeting,which reflected that there was a struggle between defendant and the victim. Under thesecircumstances, we conclude that there is sufficient evidence corroborating defendant's statementthat he had attempted to rob the victim (see generally People v Murray, 40 NY2d 327,335 [1976], rearg denied 40 NY2d 1080 [1976], cert denied 430 US 948 [1977]).Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury(see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant further contends that he was denied effective assistance of counsel based ondefense counsel's decision not to call a voice recognition expert or present a sample ofdefendant's voice to the jury, and defense counsel's decision to present a defense that largelyrelied on gaps in the People's proof. We reject that contention because those purportedshortcomings involve " 'matter[s] of trial strategy and cannot be characterized asineffective assistance of counsel' " (People v Atkins, 107 AD3d 1465, 1465 [4th Dept 2013], lvdenied 21 NY3d 1040 [2013]; see generally People v Benevento, 91 NY2d 708,712-713 [1998]). Although defendant contends that defense counsel was ineffective for failing toobject to certain remarks during the prosecutor's opening and closing statements, the disputedstatements regarding the victim's death were fair comment on the evidence (see People v Fick, 167 AD3d1484, 1485-1486 [4th Dept 2018], lv denied 33 NY3d 948 [2019]), and theprosecutor's comments regarding the police informant who had recorded defendant's statementwere a fair response to defense counsel's closing argument (see id.; see also People v Garrow, 171 AD3d1542, 1546 [4th Dept 2019], lv denied 34 NY3d 931 [2019]). Moreover, defendantfailed to demonstrate the absence of a strategic or other legitimate reason for defense counsel'sdecision not to object to the prosecutor's comments (see People v Freeman, 46 AD3d 1375, 1376 [4th Dept 2007], lvdenied 10 NY3d 840 [2008]). Regarding defense counsel's own opening statement,"[d]efendant's complaint about defense counsel's performance during opening . . .argument[ ] 'merely amounts to a second-guessing of counsel's trial strategy and does notestablish ineffectiveness' " (People v Simpson, 173 AD3d 1617, 1620 [4th Dept 2019], lvdenied 34 NY3d 954 [2019]). Defendant failed to establish that there was no strategic orother legitimate reason for defense counsel's failure to object to testimony that the policeinformant had served as an informant previously (see Freeman, 46 AD3d at 1376), anddefense counsel was not ineffective for requesting an inapplicable lesser included offense (see generally People v Hancock, 43AD3d 1380, 1380-1381 [4th Dept 2007], lv denied 9 NY3d 1034 [2008]).
We also reject defendant's contention that County Court erred in overruling defense counsel'shearsay objections regarding testimony from a law enforcement witness and the police informant.That testimony was not admitted for its truth, but rather to complete the narrative by explainingsubsequent actions taken by the witnesses, i.e., explaining how and why the police informantbecame involved in the investigation and how the police informant came to meet with defendantin order to record defendant's statement (see People v Failing, 129 AD3d 1677, 1678-1679 [4th Dept 2015],lv denied 26 NY3d 967 [2015]). Finally, the sentence is not unduly harsh or severe.Present—Smith, J.P., Carni, Curran, Troutman and Winslow, JJ.