PEOPLE v. MOORE III

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Joe MOORE, III, Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  PIGOTT, JR., P.J., HAYES, HURLBUTT, SCUDDER and LAWTON, JJ. Philip Rothschild, Amherst, for defendant-appellant. Mark Moody, New York City, for plaintiff-respondent.

 Defendant appeals from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25[1] ), criminal possession of a weapon in the second degree (Penal Law § 265.03[2] ) and conspiracy in the fourth degree (Penal Law § 105.10[1] ).   County Court did not abuse its discretion in consolidating for trial the indictment charging defendant with conspiracy and the indictment charging him with the remaining counts of which he was convicted (see, CPL 200.20[4], [5] ).   Evidence of the conspiracy to rob a specific mobile home was material and admissible as evidence-in-chief to establish defendant's motive and intent with respect to the murder that occurred in that same mobile home and thus the offenses charged in both indictments were joinable for trial purposes pursuant to CPL 200.20(2)(b) (see, People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083).

 The court properly denied defendant's request for a missing witness charge.   The record does not indicate that the witnesses would have provided testimony favorable to the People or that the witnesses were in the People's control (see, People v. Vigliotti, 270 A.D.2d 904, 905, 706 N.Y.S.2d 544;  People v. Youngblood, 261 A.D.2d 960, 690 N.Y.S.2d 809, lv. denied 93 N.Y.2d 1029, 697 N.Y.S.2d 589, 719 N.E.2d 950;  People v. Bessard, 148 A.D.2d 49, 53-54, 543 N.Y.S.2d 760, lv. denied 74 N.Y.2d 845, 546 N.Y.S.2d 1010, 546 N.E.2d 193;  see generally, People v. Gonzalez, 68 N.Y.2d 424, 427-428, 509 N.Y.S.2d 796, 502 N.E.2d 583).   We reject defendant's contention that the admission of the statement of the codefendant, who did not testify, violated defendant's rights under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476.   That statement did not inculpate defendant or even mention his name.   The hearsay statement was properly admitted in evidence as a declaration by a coconspirator “during the course and in furtherance of the conspiracy” (People v. Bac Tran, 80 N.Y.2d 170, 179, 589 N.Y.S.2d 845, 603 N.E.2d 950, rearg. denied 81 N.Y.2d 784, 594 N.Y.S.2d 721, 610 N.E.2d 394;  see, People v. Owusu, 234 A.D.2d 893, 652 N.Y.S.2d 914, lv. denied 89 N.Y.2d 1039, 659 N.Y.S.2d 870, 681 N.E.2d 1317).

 Defendant's contention that the conviction of murder in the second degree is not supported by legally sufficient evidence is not preserved for our review (see, People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, the evidence, viewed in the light most favorable to the prosecution, establishes the essential elements of the crime beyond a reasonable doubt (see, People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932).   The verdict is not against the weight of the evidence.   Based on our review of the record, we conclude that the jury gave the evidence the weight it should be accorded (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Although defendant contends that certain witnesses were unworthy of belief, matters of credibility are within the province of the jury (see, People v. Gruttola, 43 N.Y.2d 116, 122, 400 N.Y.S.2d 788, 371 N.E.2d 506).   The testimony of those witnesses was not incredible as a matter of law (see, People v. Johnson, 256 A.D.2d 1157, 683 N.Y.S.2d 681, lv. denied 93 N.Y.2d 875, 689 N.Y.S.2d 437, 711 N.E.2d 651;  People v. Steele, 168 A.D.2d 937, 938-939, 565 N.Y.S.2d 339, lv. denied 77 N.Y.2d 967, 570 N.Y.S.2d 501, 573 N.E.2d 589).

Judgment unanimously affirmed.

MEMORANDUM: