PEOPLE v. CAMPBELL

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Michael CAMPBELL, Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  GREEN, J.P., PINE, WISNER, KEHOE and BALIO, JJ. Michael J. Nolan, Albany, for defendant-appellant. Wendy Evans Lehmann, Rochester, for plaintiff-respondent.

 Defendant appeals from a judgment convicting him of murder in the second degree (Penal Law § 125.25[1] ) (three counts), attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ), assault in the first degree (Penal Law § 120.10[1] ) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01[1] ), all arising out of four shootings committed in three separate incidents over eight months.   Defendant contends that Supreme Court erred in denying his motion to suppress his written statement as elicited in violation of his State constitutional right to counsel (see, N.Y. Const., art. I, § 6).   He contends that police questioning of defendant as to the then uncharged murders was precluded by the attachment of defendant's right to counsel on the attempted murder/assault.   We disagree.   The murders were not transactionally related to the attempted murder, and thus the court properly refused to suppress defendant's incriminating statement with regard to the murders (see, People v. Cohen, 90 N.Y.2d 632, 638-639, 665 N.Y.S.2d 30, 687 N.E.2d 1313;  People v. White, 244 A.D.2d 765, 767, 666 N.Y.S.2d 233, lv. denied 91 N.Y.2d 1014, 676 N.Y.S.2d 142, 698 N.E.2d 971;  People v. Gehy, 238 A.D.2d 354, 355, 656 N.Y.S.2d 58, lv. denied 90 N.Y.2d 905, 663 N.Y.S.2d 517, 686 N.E.2d 229;  People v. Marin, 215 A.D.2d 267, 627 N.Y.S.2d 16, appeal dismissed 88 N.Y.2d 931, 647 N.Y.S.2d 162, 670 N.E.2d 446).   As demonstrated by the foregoing cases, particularly those involving a single victim, the fact that the crimes involved a common motive or intent or a common instrumentality is not dispositive.   Although defendant's right to counsel had attached with respect to the attempted murder, questions concerning that charge were not impermissibly intermingled with questions concerning the uncharged matters on which defendant was not represented (see, People v. Miller, 54 N.Y.2d 616, 618 619, 442 N.Y.S.2d 491, 425 N.E.2d 879;  People v. Ermo, 47 N.Y.2d 863, 865, 419 N.Y.S.2d 65, 392 N.E.2d 1248;  cf., People v. Cohen, supra, at 640-642, 665 N.Y.S.2d 30, 687 N.E.2d 1313).   The evidence at the suppression hearing established that police refrained from questioning defendant about the attempted murder because they were aware that defendant's right to counsel had attached with respect to that charge.

 Contrary to defendant's remaining contention, the verdict is not against the weight of the evidence insofar as the jury rejected the defense of extreme emotional disturbance (see, People v. Spaich, 259 A.D.2d 996, 997, 688 N.Y.S.2d 324, lv. denied 94 N.Y.2d 829, 702 N.Y.S.2d 600, 724 N.E.2d 392;  People v. Gabriel, 241 A.D.2d 835, 836, 661 N.Y.S.2d 306, lv. denied 91 N.Y.2d 892, 669 N.Y.S.2d 6, 691 N.E.2d 1032;  see generally, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Judgment affirmed.

MEMORANDUM:

All concur, WISNER, J., not participating.