PEOPLE v. MURPHY III

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Frank MURPHY, also known as Francis W. Murphy, III, Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, GORSKI, SMITH, AND PINE, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him, following a nonjury trial, of four counts of intentional murder in the second degree (Penal Law § 125.25[1] ) and one count each of felony murder in the second degree (§ 125.25[3] ) and robbery in the first degree (§ 160.15[2] ).   Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919) and, in any event, that contention lacks merit.   Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that “there is a ‘valid line of reasoning and permissible inferences [that] could lead a rational person to the conclusion reached by the fact finder’ ” (People v. DeNormand, 1 A.D.3d 1047, 1048, 767 N.Y.S.2d 380, lv. denied 1 N.Y.3d 626, 777 N.Y.S.2d 25, 808 N.E.2d 1284;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant also failed to preserve for our review his contention that Supreme Court erred in admitting identification testimony that was based on an identification procedure not set forth in the CPL 710.30 notice (see CPL 470.05 [2];  People v. Pagan, 248 A.D.2d 325, 670 N.Y.S.2d 831, affd. 93 N.Y.2d 891, 689 N.Y.S.2d 686, 711 N.E.2d 964;  People v. Hunter, 122 A.D.2d 166, 504 N.Y.S.2d 543, lv. denied 68 N.Y.2d 770, 506 N.Y.S.2d 1054, 498 N.E.2d 156).   In any event, we conclude that any error in the admission of that testimony is harmless (see People v. Peterkin, 245 A.D.2d 1050, 1051, 667 N.Y.S.2d 559, lv. denied 91 N.Y.2d 1011, 676 N.Y.S.2d 139, 698 N.E.2d 968;  People v. Winslow, 213 A.D.2d 435, 624 N.Y.S.2d 881, lv. denied 85 N.Y.2d 982, 629 N.Y.S.2d 742, 653 N.E.2d 638;  see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

We conclude that the court properly denied defendant's motion for severance.   The offenses were joinable under CPL 200.20(2)(b), and thus the court lacked statutory authority to grant defendant's motion (see People v. Cornell, 17 A.D.3d 1010, 1011, 794 N.Y.S.2d 226, lv. denied 5 N.Y.3d 805, 803 N.Y.S.2d 34, 836 N.E.2d 1157;  see also People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083;  People v. Fontanez, 278 A.D.2d 933, 934-935, 718 N.Y.S.2d 541, lv. denied 96 N.Y.2d 862, 730 N.Y.S.2d 36, 754 N.E.2d 1119).   Contrary to defendant's contention, “the[ ] offenses were inextricably interwoven” (People v. Vick, 19 A.D.3d 321, 321, 798 N.Y.S.2d 411), and the evidence of each offense helps establish the identity of the perpetrator of the other offenses (see People v. Mullins, 247 A.D.2d 885, 886, 668 N.Y.S.2d 799, lv. denied 92 N.Y.2d 928, 680 N.Y.S.2d 469, 703 N.E.2d 281;  see also People v. Richardson, 235 A.D.2d 502, 503, 653 N.Y.S.2d 602, lv. denied 89 N.Y.2d 1014, 658 N.Y.S.2d 253, 680 N.E.2d 627).

We reject defendant's further contention that the court erred in admitting the hearsay statements of one of the victims that he was going to meet defendant (see People v. James, 93 N.Y.2d 620, 634-635, 695 N.Y.S.2d 715, 717 N.E.2d 1052;  People v. D'Arton, 289 A.D.2d 711, 712-713, 734 N.Y.S.2d 309, lv. denied 97 N.Y.2d 728, 740 N.Y.S.2d 701, 767 N.E.2d 158).   Finally, contrary to the contentions of defendant, he 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), and the sentence is not unduly harsh or severe.

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

MEMORANDUM: