PEOPLE v. VAUGHAN (2008)

Defendant appeals from a judgment convicting him upon a jury verdict of manslaughter in the second degree (Penal Law § 125.15 [1] ).   Defendant failed to preserve for our review his contention that his right of confrontation was violated by the admission in evidence of hearsay testimony with respect to the cocaine sale between the victim and one of the codefendants (see generally People v. Fleming, 70 N.Y.2d 947, 948, 524 N.Y.S.2d 670, 519 N.E.2d 616).   In any event, that contention is without merit (see generally People v. Dickson, 21 A.D.3d 646, 647, 799 N.Y.S.2d 657).   Defendant also failed to preserve for our review his contention that his right of confrontation was violated by the admission in evidence of the hearsay testimony of two police investigators with respect to the statements of his codefendants (see People v. Ball, 11 A.D.3d 904, 905, 782 N.Y.S.2d 228, lv. denied 3 N.Y.3d 755, 788 N.Y.S.2d 671, 821 N.E.2d 976, 4 N.Y.3d 741, 790 N.Y.S.2d 653, 824 N.E.2d 54) and, in any event, that contention is also without merit (see People v. Davis, 290 A.D.2d 377, 736 N.Y.S.2d 593, lv. denied 100 N.Y.2d 560, 763 N.Y.S.2d 817, 795 N.E.2d 43;  see also People v. Gladden, 298 A.D.2d 462, 463, 748 N.Y.S.2d 170, lv. denied 99 N.Y.2d 582, 755 N.Y.S.2d 718, 785 N.E.2d 740).

 Defendant failed to renew his motion for a trial order of dismissal with respect to the charge of depraved indifference murder after presenting evidence and thus failed to preserve for our review his contention that Supreme Court erred in denying his motion (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).   In any event, that contention is without merit.   Here, defendant was indicted for, inter alia, three counts of murder in the second degree, including intentional murder (Penal Law § 125.25[1] ), depraved indifference murder (§ 125.25[2] ) and felony murder (§ 125.25[3] ), and was convicted of the lesser included offense of manslaughter in the second degree.  CPL 290.10 “does not contemplate the granting of a trial order dismissing a count of an indictment when legally sufficient evidence exists to support a lesser included offense under that count” (People v. Congilaro, 60 A.D.2d 442, 457-458, 400 N.Y.S.2d 409).   The evidence is legally sufficient to support that lesser included offense, inasmuch as the People presented evidence establishing that the gun discharged during a struggle between defendant and the victim (see People v. DeCapua, 37 A.D.3d 1189, 1190, 829 N.Y.S.2d 799, lv. denied 8 N.Y.3d 983, 838 N.Y.S.2d 487, 869 N.E.2d 663).   We further conclude that the verdict is not 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).

 We reject the contention of defendant that he was denied effective assistance of counsel inasmuch as defense counsel's failure to request a jury charge for justification or the defense of accident reflects a reasonable trial strategy (see People v. Hicks, 12 A.D.3d 1044, 784 N.Y.S.2d 451, lv. denied 4 N.Y.3d 799, 795 N.Y.S.2d 174, 828 N.E.2d 90;  see also People v. Thomas, 299 A.D.2d 942, 750 N.Y.S.2d 417, lv. denied 99 N.Y.2d 620, 757 N.Y.S.2d 831, 787 N.E.2d 1177;  People v. Vukel, 263 A.D.2d 416, 416, 695 N.Y.S.2d 73, lv. denied 94 N.Y.2d 830, 702 N.Y.S.2d 601, 724 N.E.2d 393).   Contrary to defendant's contention, defense counsel did not concede that defendant was guilty of the lesser included offense of criminally negligent homicide or the lesser included offense of manslaughter (cf. People v. Washington, 5 Misc.3d 957, 961-963, 785 N.Y.S.2d 885, appeal dismissed 19 A.D.3d 1180, 795 N.Y.S.2d 915).  “[T]he evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation” establish that defendant received meaningful representation (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

 In addition, the court properly refused to suppress the oral and written statements that defendant made to police investigators while he was in custody.   The court's determination that defendant voluntarily waived his Miranda rights prior to making those statements was based upon the credibility of the witnesses at the suppression hearing and thus is entitled to great deference (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380;  People v. White, 300 A.D.2d 1149, 752 N.Y.S.2d 771, lv. denied 99 N.Y.2d 621, 757 N.Y.S.2d 832, 787 N.E.2d 1178).   Contrary to the contention of defendant, he did not unequivocally request an attorney when he asked the police whether he needed a lawyer (see People v. D'Eredita, 302 A.D.2d 925, 755 N.Y.S.2d 673, lv. denied 99 N.Y.2d 654, 760 N.Y.S.2d 118, 790 N.E.2d 292).   Also contrary to the contention of defendant, the court properly denied his motion for a mistrial based on the People's Rosario violation inasmuch as defense counsel received the transcript of the witness's prior testimony and was able to conduct an effective cross-examination of the witness.   Defendant thus has failed to demonstrate that he was substantially prejudiced by the People's delay in providing him with the transcript in question (see People v. Goston, 9 A.D.3d 905, 906-907, 779 N.Y.S.2d 699, lv. denied 3 N.Y.3d 706, 785 N.Y.S.2d 34, 818 N.E.2d 676;  People v. Jacob, 287 A.D.2d 740, 732 N.Y.S.2d 245, lv. denied 97 N.Y.2d 729, 740 N.Y.S.2d 702, 767 N.E.2d 159).   The sentence is not unduly harsh or severe, and the court's comment that the victim purchased his death, rather than drugs, at defendant's hands, merely reflected the court's view of the nature of the crime (see People v. Anderson, 287 A.D.2d 574, 731 N.Y.S.2d 495, lv. denied 97 N.Y.2d 701, 739 N.Y.S.2d 101, 765 N.E.2d 304).

Finally, we note that the certificate of conviction incorrectly reflects that defendant was convicted of manslaughter in the second degree under Penal Law § 125.15(2), and it must therefore be amended to reflect that he was convicted under Penal Law § 125.15(1) (see People v. Martinez, 37 A.D.3d 1099, 1100, 828 N.Y.S.2d 828, lv. denied 8 N.Y.3d 947, 836 N.Y.S.2d 558, 868 N.E.2d 241).

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

MEMORANDUM: