PEOPLE v. BACKUS (2009)

 On appeal from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree (Penal Law § 125.25[3] [felony murder] ) and burglary in the first degree (§ 140.30[2] ), defendant contends that the felony murder count did not charge a “cognizable crime” under the circumstances of this case.   Despite the language in which defendant frames his contention, we conclude that he is in effect contending that the felony murder count is duplicitous.   Such a contention must be preserved for our review (see People v. Sponburgh, 61 A.D.3d 1415, 877 N.Y.S.2d 585, lv. denied 12 N.Y.3d 929, 884 N.Y.S.2d 711, 912 N.E.2d 1092;  People v. Pyatt, 30 A.D.3d 265, 265-266, 817 N.Y.S.2d 46, lv. denied 7 N.Y.3d 869, 824 N.Y.S.2d 614, 857 N.E.2d 1145), and defendant failed to do so.   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] ).   Defendant contends that preservation is not required in any event because the indictment was jurisdictionally defective.   We reject that contention.  “[A]n indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime” (People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656;  see People v. Ray, 71 N.Y.2d 849, 527 N.Y.S.2d 740, 522 N.E.2d 1037) and, here, the count of the indictment that is the subject of defendant's challenge expressly charges defendant only with felony murder.

 Inasmuch as defendant consented to the supplemental instruction given by Supreme Court in response to a jury note concerning telephone records, he “has waived his present challenge to the [supplemental] instruction” (People v. Scott, 60 A.D.3d 1396, 1397, 876 N.Y.S.2d 271, lv. denied 12 N.Y.3d 821, 881 N.Y.S.2d 29, 908 N.E.2d 937).   Contrary to defendant's further contentions, we conclude that there is sufficient evidence corroborating the testimony of the accomplice (see generally People v. Breland, 83 N.Y.2d 286, 293-294, 609 N.Y.S.2d 571, 631 N.E.2d 577;  People v. Daniels, 37 N.Y.2d 624, 629-630, 376 N.Y.S.2d 436, 339 N.E.2d 139), and that the evidence is legally sufficient to support the conviction (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 further contention of defendant that he was denied effective assistance of counsel based, inter alia, upon defense counsel's failure to make certain motions or to interpose certain objections (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).  “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. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671).

We have considered defendant's remaining contentions and conclude that they are without merit.

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

MEMORANDUM: