PEOPLE v. OJO

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Edundabira O. OJO, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., HURLBUTT, GORSKI, CENTRA, AND GREEN, JJ. Charles J. Greenberg, Buffalo, for Defendant-Appellant. Cindy F. Intschert, District Attorney, Watertown, for Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of two counts each of murder in the first degree (Penal Law § 125.27 [1][a] [viii];  [b] ), murder in the second degree (§ 125.25[1] ) and assault in the first degree (§ 120.10[1] ) and one count of criminal possession of a weapon in the fourth degree (§ 265.01[2] ).   Defendant failed to preserve for our review his challenges to the legal sufficiency of the evidence (see generally 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, contrary to defendant's further contention, 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).   Also contrary to the contention of defendant, County Court properly refused to suppress the statements he made at the police station before he was accompanied to the restroom by a police officer.   The record of the suppression hearing establishes that defendant was not in custody prior to that time (see People v. Smith, 214 A.D.2d 845, 847, 625 N.Y.S.2d 684, lv. denied 86 N.Y.2d 741, 631 N.Y.S.2d 622, 655 N.E.2d 719;  People v. Spellman, 168 A.D.2d 318, 319, 562 N.Y.S.2d 652, lv. denied 77 N.Y.2d 1001, 571 N.Y.S.2d 927, 575 N.E.2d 413), and it further establishes that he had not unequivocally invoked his right to counsel (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).   We note that defendant improperly relies on trial testimony in challenging the court's suppression ruling (see People v. Crosby, 33 A.D.3d 719, 720, 821 N.Y.S.2d 908, lv. denied 8 N.Y.3d 845, 830 N.Y.S.2d 703, 862 N.E.2d 795).

 Defendant failed to preserve for our review his further contention that he was arrested without probable cause (see People v. Barton, 13 A.D.3d 721, 723, 787 N.Y.S.2d 135, lv. denied 5 N.Y.3d 785, 801 N.Y.S.2d 806, 835 N.E.2d 666), 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] ).   Contrary to defendant's further contentions, the court properly exercised its discretion in admitting in evidence testimony concerning defendant's prior assaultive acts and threats against one of the victims (see People v. Bierenbaum, 301 A.D.2d 119, 149-150, 748 N.Y.S.2d 563, lv. denied 99 N.Y.2d 626, 760 N.Y.S.2d 107, 790 N.E.2d 281, cert. denied 540 U.S. 821, 124 S.Ct. 134, 157 L.Ed.2d 40;  People v. Linton, 166 A.D.2d 670, 671, 561 N.Y.S.2d 259, lv. denied 77 N.Y.2d 879, 568 N.Y.S.2d 922, 571 N.E.2d 92), photographs of the crime scene (see generally People v. Williams, 28 A.D.3d 1059, 1060, 813 N.Y.S.2d 606, affd. 8 N.Y.3d 854, 831 N.Y.S.2d 367, 863 N.E.2d 588), and a convenience store video showing defendant's appearance and location on the night of the murders (see generally People v. Mateo, 2 N.Y.3d 383, 424-425, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828).

 Modification of the judgment is required, however, because counts four and five, charging murder in the second degree, are inclusory concurrent counts of the counts charging murder in the first degree (see CPL 300.40[3][b];  People v. Jackson, 41 A.D.3d 1268, 1270, 839 N.Y.S.2d 377;  People v. Pierre, 37 A.D.3d 1172, 829 N.Y.S.2d 386, lv. denied 8 N.Y.3d 989, 838 N.Y.S.2d 492, 869 N.E.2d 668).   We therefore modify the judgment by reversing those parts convicting defendant of murder in the second degree and dismissing counts four and five of the indictment.   In addition, we conclude that the court erred in directing that the sentence of life imprisonment without parole imposed for murder in the first degree under count one shall run consecutively to the sentences imposed for murder in the first degree and criminal possession of a weapon in the fourth degree under counts two and eight, respectively (see People v. Rosas, 8 N.Y.3d 493, 498, 836 N.Y.S.2d 518, 868 N.E.2d 199;  Jackson, 41 A.D.3d at 1270, 839 N.Y.S.2d 377;  People v. Manor, 38 A.D.3d 1257, 1259, 832 N.Y.S.2d 341, lv. denied 9 N.Y.3d 847, 840 N.Y.S.2d 774, 872 N.E.2d 887).   The court also erred in directing that the sentences imposed for murder in the first degree and assault in the first degree under counts two and seven, respectively, shall run consecutively to the sentence imposed on count eight (see Manor, 38 A.D.3d at 1259, 832 N.Y.S.2d 341).   We therefore further modify the judgment accordingly.   The sentence, as so modified, is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reversing those parts convicting defendant of murder in the second degree and dismissing counts four and five of the indictment and by directing that the sentence imposed for murder in the first degree under count one of the indictment shall run concurrently with the sentences imposed on counts two and eight of the indictment and that the sentences imposed for murder in the first degree and assault in the first degree under counts two and seven of the indictment, respectively, shall run concurrently with the sentence imposed on count eight of the indictment and as modified the judgment is affirmed.

MEMORANDUM: