PEOPLE v. GEDDES (2008)

 On appeal from a judgment convicting him, upon a jury verdict, of murder in the second degree (Penal Law § 125.25[1] ), defendant contends that the conviction is not supported by legally sufficient evidence of his intent to kill.   We reject that contention (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   It is well settled that, “[a]lthough intent to kill may not be inferred from the mere fact of killing, it may be inferred from conduct as well as the surrounding circumstances” (People v. Henning, 267 A.D.2d 1092, 1092, 701 N.Y.S.2d 566, lv. denied 94 N.Y.2d 903, 707 N.Y.S.2d 388, 728 N.E.2d 987;  see People v. Price, 35 A.D.3d 1230, 1231, 825 N.Y.S.2d 868, lv. denied 8 N.Y.3d 919, 926, 834 N.Y.S.2d 510, 516, 866 N.E.2d 456, 462).   Viewing the evidence in the light most favorable to the People, as we must (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that the requisite intent to kill may be inferred from the admission of defendant that he was solely responsible for the victim's death, his inconsistent descriptions of the events that caused the death, the medical evidence, which contradicted defendant's theory of the case, and defendant's conduct in hiding the victim's body in a storage facility for 14 years (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Further, the verdict is not against the weight of the evidence (see generally id.).

 Contrary to defendant's further contention, County Court properly refused to admit in evidence a police report memorializing statements made by defendant's son, who died prior to trial.   Even assuming, arguendo, that the report falls within the exception to the hearsay rule for past recollections recorded (see generally People v. Taylor, 80 N.Y.2d 1, 8, 586 N.Y.S.2d 545, 598 N.E.2d 693;  Prince, Richardson on Evidence §§ 6-216, 6-218 [Farrell 11th ed.] ), we conclude that the statements of defendant's son contained therein are inadmissible.   Those out-of-court statements were offered for the truth of the facts asserted and do not fall within any recognized exception to the hearsay rule (see generally People v. Settles, 46 N.Y.2d 154, 166-167, 412 N.Y.S.2d 874, 385 N.E.2d 612).

 We further reject the contention of defendant that he was denied his right to effective assistance of counsel based on defense counsel's inability to persuade the court to admit the police report in evidence and defense counsel's failure to request a circumstantial evidence charge.   As noted, the court properly determined that the report contained inadmissible hearsay, and we further note that a circumstantial evidence charge would have been improper because the People also presented direct evidence of defendant's guilt, i.e., statements by defendant that constituted “ ‘relevant admission[s] of guilt’ ” (People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951, quoting People v. Rumble, 45 N.Y.2d 879, 880, 410 N.Y.S.2d 806, 383 N.E.2d 108;  see People v. Casper, 42 A.D.3d 887, 888, 839 N.Y.S.2d 397, lv. denied 9 N.Y.3d 990, 848 N.Y.S.2d 607, 878 N.E.2d 1023;  People v. Green, 174 A.D.2d 511, 512-513, 571 N.Y.S.2d 290, lv. denied 78 N.Y.2d 1011, 575 N.Y.S.2d 819, 581 N.E.2d 1065).   Thus, defense counsel cannot be deemed ineffective for failing to request a circumstantial evidence charge.   In any event, even assuming, arguendo, that such a charge was appropriate, we conclude that the “single error in failing to request such a charge [would] not constitute ineffective representation as it was not so serious as to compromise defendant's right to a fair trial” (People v. Gunney, 13 A.D.3d 980, 983, 787 N.Y.S.2d 483, lv. denied 5 N.Y.3d 789, 801 N.Y.S.2d 810, 835 N.E.2d 670).

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

MEMORANDUM: