PEOPLE v. McFARLAND (2006)

Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ), criminal possession of a weapon in the second degree (§ 265.03[2] ), and criminal possession of a weapon in the third degree (§ 265.02[4] ).   Contrary to the contentions raised in defendant's pro se supplemental brief, the conviction is supported by legally sufficient evidence (see People v. Streeter, 21 A.D.3d 1291, 1292, 804 N.Y.S.2d 164, lv. denied 6 N.Y.3d 898, 817 N.Y.S.2d 633, 850 N.E.2d 680), and 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;  People v. Hill, 30 A.D.3d 1024, 815 N.Y.S.2d 859).

 Contrary to the contentions raised in defendant's main brief, Supreme Court did not err in summarily denying defendant's motion to suppress evidence as the fruit of an allegedly unlawful arrest.   Indeed, defendant fails to identify any suppressible fruits of his arrest, and our review of the record reveals none.   The court also did not err in admitting in evidence the recordings of telephone calls evincing defendant's participation in a scheme to tamper with the eyewitness (see generally People v. Robinson, 28 A.D.3d 1126, 1128, 814 N.Y.S.2d 418;  People v. De Vivo, 282 A.D.2d 770, 772, 726 N.Y.S.2d 145, lv. denied 96 N.Y.2d 900, 730 N.Y.S.2d 798, 756 N.E.2d 86;  People v. Jones, 276 A.D.2d 292, 714 N.Y.S.2d 24, lv. denied 95 N.Y.2d 965, 722 N.Y.S.2d 482, 745 N.E.2d 403), and the recordings were properly authenticated, thereby establishing the requisite foundation for their admission in evidence (see People v. Williams, 281 A.D.2d 933, 722 N.Y.S.2d 683, lv. denied 96 N.Y.2d 869, 730 N.Y.S.2d 44, 754 N.E.2d 1127;  People v. Fuschino, 278 A.D.2d 657, 659, 719 N.Y.S.2d 152, lv. denied 96 N.Y.2d 800, 726 N.Y.S.2d 377, 750 N.E.2d 79).   Even assuming, arguendo, that the court erred in admitting in evidence certain records of the New York State Department of Motor Vehicles under the business records exception to the hearsay rule (see generally CPLR 4518;  People v. Kennedy, 68 N.Y.2d 569, 575-580, 510 N.Y.S.2d 853, 503 N.E.2d 501), we conclude that the error is harmless.   The evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted but for the admission of those records (see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   The court did not err in submitting both the intentional and depraved indifference murder counts to the jury, inasmuch as the jury was properly instructed on the verdict sheet to consider the counts in the alternative.   The sentence is not unduly harsh or severe.

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

MEMORANDUM: