PEOPLE v. HAREWOOD

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Ian HAREWOOD, Defendant-Appellant.

Decided: November 17, 2006

PRESENT:  KEHOE, J.P., MARTOCHE, CENTRA, GREEN, AND PINE, JJ. Shirley A. Gorman, Albion, for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25[3] [felony murder] ) and two counts of attempted robbery in the first degree (§§ 110.00, 160.15[2], [4] ).   Contrary to defendant's contention, the rulings by County Court on various issues did not in effect allow the People to change their theory of the case during trial (cf. People v. Roberts, 72 N.Y.2d 489, 497, 534 N.Y.S.2d 647, 531 N.E.2d 279;  People v. Orso, 270 A.D.2d 947, 948, 706 N.Y.S.2d 805, lv. denied 95 N.Y.2d 856, 714 N.Y.S.2d 7, 736 N.E.2d 868;  People v. Fata, 184 A.D.2d 206, 586 N.Y.S.2d 780, lv. denied 80 N.Y.2d 974, 591 N.Y.S.2d 143, 605 N.E.2d 879;  People v. Powell, 153 A.D.2d 54, 549 N.Y.S.2d 276, lv. denied 75 N.Y.2d 969, 556 N.Y.S.2d 254, 555 N.E.2d 626).   Also contrary to defendant's contentions, the evidence is legally sufficient to support the conviction, and 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).

We reject the further contention of defendant that the statements of an accomplice were not declarations against penal interest and thus were improperly admitted at trial (see generally People v. Brensic, 70 N.Y.2d 9, 15-16, 517 N.Y.S.2d 120, 509 N.E.2d 1226, mot. to amend remittitur granted 70 N.Y.2d 722, 519 N.Y.S.2d 641, 513 N.E.2d 1302;  People v. Settles, 46 N.Y.2d 154, 167, 412 N.Y.S.2d 874, 385 N.E.2d 612).   We also reject his contention that his statements to the police were not sufficiently corroborated (see generally CPL 60.50;  People v. Chico, 90 N.Y.2d 585, 589-590, 665 N.Y.S.2d 5, 687 N.E.2d 1288;  People v. Daniels, 37 N.Y.2d 624, 629, 376 N.Y.S.2d 436, 339 N.E.2d 139).

Defendant failed to preserve for our review his challenge to the court's jury instructions (see People v. Ponder, 19 A.D.3d 1041, 1042-1043, 796 N.Y.S.2d 472, lv. denied 5 N.Y.3d 809, 803 N.Y.S.2d 38, 836 N.E.2d 1161;  People v. Halberg, 254 A.D.2d 808, 679 N.Y.S.2d 763;  see also People v. Swail, 19 A.D.3d 1013, 796 N.Y.S.2d 797, lv. denied 6 N.Y.3d 759, 810 N.Y.S.2d 427, 843 N.E.2d 1167, 6 N.Y.3d 853, 816 N.Y.S.2d 759, 849 N.E.2d 982), nor did he preserve for our review his challenge to the court's failure to grant a mistrial after striking the testimony of two witnesses (see People v. Pross, 302 A.D.2d 895, 897, 754 N.Y.S.2d 792, lv. denied 99 N.Y.2d 657, 760 N.Y.S.2d 122, 790 N.E.2d 296).   We decline to exercise our power to review those challenges as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Finally, we conclude that the evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

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

MEMORANDUM: