PEOPLE v. JOHNSON (2006)

Defendant appeals from a judgment convicting him upon a jury verdict of two counts of murder in the second degree (Penal Law § 125.25 [1] ), one count of attempted murder in the second degree (§§ 110.00, 125.25[1] ), three counts of criminal possession of a weapon in the second degree (§ 265.03 [2] ) and four counts of criminal possession of a weapon in the third degree (§ 265.02[1], [4] ).   The judgment also encompasses the conviction of defendant upon his plea of guilty of one count of criminal possession of a weapon in the third degree (§ 265.02[4] ).   Contrary to the contention of defendant, the sentencing minutes establish that Supreme Court sentenced him on all counts of which he was convicted, and we reject his further contention that the sentence is unduly harsh or severe.

 We reject the contention of defendant that he was denied effective assistance of counsel based upon defense counsel's stipulation with respect to the contents of a videotape.   The videotape was admissible as rebuttal evidence to discredit the testimony of defendant's alibi witness (see People v. Anonymous, 96 N.Y.2d 839, 840, 729 N.Y.S.2d 434, 754 N.E.2d 193) and defendant has not demonstrated “the absence of strategic or other legitimate explanations for [defense] counsel's” stipulation (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;  see generally People v. Rivera, 22 A.D.3d 888, 889-890, 802 N.Y.S.2d 540, lv. denied 6 N.Y.3d 780, 811 N.Y.S.2d 347, 844 N.E.2d 802).   Defendant failed to preserve for our review his contention that he was deprived of a fair trial by several alleged instances of prosecutorial misconduct during summation (see People v. Smith, 24 A.D.3d 1286, 1287, 805 N.Y.S.2d 903;  People v. Gordon, 12 A.D.3d 1107, 784 N.Y.S.2d 406, lv. denied 4 N.Y.3d 744, 790 N.Y.S.2d 656, 824 N.E.2d 57), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a];  People v. Rickard, 26 A.D.3d 800, 801, 808 N.Y.S.2d 880).   We reject defendant's further contention that defense counsel's failure to object to those alleged instances of prosecutorial misconduct constitutes ineffective assistance of counsel (see Rickard, 26 A.D.3d at 801, 808 N.Y.S.2d 880;  People v. Anderson, 24 A.D.3d 460, 805 N.Y.S.2d 655, lv. denied 6 N.Y.3d 831, 814 N.Y.S.2d 79, 847 N.E.2d 376).   Also contrary to the contention of defendant, the court did not abuse its discretion in denying that part of his motion seeking to sever the counts relating to the separate homicides (see People v. Brown, 254 A.D.2d 781, 782, 680 N.Y.S.2d 328, lv. denied 92 N.Y.2d 1029, 684 N.Y.S.2d 494, 707 N.E.2d 449).   Defendant made no “showing that he would be unduly and genuinely prejudiced by the joint trial of the charges” (id.).

 Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396), and we reject his further contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The court's Sandoval ruling does not constitute an abuse of discretion (see People v. Smith, 275 A.D.2d 673, 713 N.Y.S.2d 350, lv. denied 95 N.Y.2d 969, 722 N.Y.S.2d 487, 745 N.E.2d 407).   The record supports the court's determination that the lineup identification procedure was not unduly suggestive (see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70), and the court properly allowed the witness who identified defendant at the lineup to testify with respect to that identification (see CPL 60.30;  People v. Davis, 294 A.D.2d 936, 742 N.Y.S.2d 758, lv. denied 98 N.Y.2d 696, 747 N.Y.S.2d 414, 776 N.E.2d 3).   The court also properly permitted the grandmother of one of the murder victims to testify concerning that victim's statement on the night of the first murder.   That statement was admissible pursuant to the excited utterance exception to the hearsay rule (see People v. Robinson, 283 A.D.2d 989, 990-991, 725 N.Y.S.2d 505, lv. denied 96 N.Y.2d 906, 730 N.Y.S.2d 804, 756 N.E.2d 92).   We have examined defendant's remaining contentions and conclude that none requires reversal.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: