Summary
finding that a sufficiency argument was "not preserved for our review inasmuch as defendant did not move for a trial order of dismissal on that ground."
Summary of this case from Green v. HaggettOpinion
2013-03-15
The PEOPLE of the State of New York, Respondent, v. Richard HEARY, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
On appeal from a judgment convicting him following a nonjury trial of manslaughter in the first degree (Penal Law § 125.20[1] ) and criminal possession of a weapon in the second degree (§ 265.03 [3] ), defendant contends that the evidence is legally insufficient to support his conviction of manslaughterbecause the People failed to meet their burden of disproving his justification defense beyond a reasonable doubt ( see generally § 25.00[1]; People v. Steele, 26 N.Y.2d 526, 528, 311 N.Y.S.2d 889, 260 N.E.2d 527). That contention is not preserved for our review inasmuch as defendant “did not move for a trial order of dismissal on that ground” ( People v. Smalls, 70 A.D.3d 1328, 1330, 894 N.Y.S.2d 791,lv. denied14 N.Y.3d 844, 901 N.Y.S.2d 151, 927 N.E.2d 572,reconsideration denied15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060;see generally People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). Defendant further contends that his conviction of manslaughter is not based on legally sufficient evidence because the People failed to establish that he intended to cause serious physical injury to the victim ( see§ 125.20[1] ). Inasmuch as defendant did not renew his motion to dismiss after he presented evidence, he failed to preserve that contention for our review ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329,rearg. denied97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;see also People v. Kolupa, 13 N.Y.3d 786, 787, 887 N.Y.S.2d 536, 916 N.E.2d 430;People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61). Defendant acknowledges that he did not preserve for our review his challenges to the legal sufficiency of the evidence, but he additionally contends that he was denied effective assistance of counsel because defense counsel failed to preserve those challenges for our review. That contention lacks merit. It is well settled that “[a] defendant is not denied effective assistance of trial counsel merely because counsel does not make a motion or argument that has little or no chance of success” ( People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883,rearg. denied3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671;see People v. Harris, 97 A.D.3d 1111, 1111–1112, 948 N.Y.S.2d 512,lv. denied19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111). Here, there was no chance that such a motion would have succeeded.
In the alternative, defendant contends that the verdict on the manslaughter count is against the weight of the evidence. We reject that contention. With respect to the justification defense, it cannot be said that Supreme Court failed to give the evidence the weight it should be accorded in determining that “the victim did not brandish [a gun] during the altercation and that defendant's use of deadly force was not justified” ( People v. Massey, 61 A.D.3d 1433, 1433, 877 N.Y.S.2d 589,lv. denied13 N.Y.3d 746, 886 N.Y.S.2d 100, 914 N.E.2d 1018;seePenal Law § 35.15[2][a]; see e.g. People v. Butera, 23 A.D.3d 1066, 1068, 803 N.Y.S.2d 856,lv. denied6 N.Y.3d 774, 811 N.Y.S.2d 341, 844 N.E.2d 796,reconsideration denied6 N.Y.3d 832, 814 N.Y.S.2d 80, 847 N.E.2d 377;People v. Wolf, 16 A.D.3d 1167, 1168, 792 N.Y.S.2d 743). Viewing the evidence in light of the elements of that crime in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not otherwise against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
We reject defendant's further contention that the court erred in refusing to suppress his statement to the police. “[T]he record of the suppression hearing supports the court's determination that the statements were not coerced, i.e., defendant received no promises in exchange for making the statements nor was he threatened in any way, and the court's determination is entitled to great deference” ( People v. Peay, 77 A.D.3d 1309, 1310, 908 N.Y.S.2d 316,lv. denied15 N.Y.3d 955, 917 N.Y.S.2d 114, 942 N.E.2d 325;see People v. McAvoy, 70 A.D.3d 1467, 1467, 894 N.Y.S.2d 270,lv. denied14 N.Y.3d 890, 903 N.Y.S.2d 778, 929 N.E.2d 1013;see generally People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.