PEOPLE v. TYLER

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

The PEOPLE of the State of New York, Respondent, v. Bernard V. TYLER, Defendant-Appellant.

Decided: August 22, 2007

PRESENT:  HURLBUTT, J.P., GORSKI, SMITH, LUNN, AND PINE, JJ. Kathleen E. Casey, Barker, for Defendant-Appellant. Matthew J. Murphy, III, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree (Penal Law § 125.25 [1] ) and criminal possession of a weapon in the second degree (former § 265.03 [2] ).   Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction of murder because the People failed to establish his intent to kill (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, defendant's contention lacks merit.   There is a valid line of reasoning and permissible inferences that could lead a rational person to the conclusion that, when defendant shot the victim multiple times at close range, striking him once in the abdomen and once in the thigh and causing death, he did so with an intent to kill (see People v. Perez, 64 N.Y.2d 868, 487 N.Y.S.2d 550, 476 N.E.2d 995;  People v. Price, 35 A.D.3d 1230, 1231, 825 N.Y.S.2d 868, lv. denied 8 N.Y.3d 919, 926, 834 N.Y.S.2d 510, 516, 866 N.E.2d 456, 462;  People v. Byfield, 15 A.D.3d 262, 790 N.Y.S.2d 434, lv. denied 4 N.Y.3d 884, 798 N.Y.S.2d 729, 831 N.E.2d 974;  People v. Smith, 2 A.D.3d 175, 768 N.Y.S.2d 211, lv. denied 2 N.Y.3d 807, 781 N.Y.S.2d 306, 814 N.E.2d 478).   Contrary to defendant's further contention, County Court did not err in refusing to charge the lesser included offense of manslaughter in the first degree.   In view of the evidence that defendant fired his gun multiple times at the victim at close range, with one of the shots piercing the victim's abdomen and damaging several major organs and vessels, the court properly concluded that there is no reasonable view of the evidence that would support a finding that defendant committed manslaughter in the first degree but not intentional murder (see People v. Butler, 84 N.Y.2d 627, 634-635, 620 N.Y.S.2d 775, 644 N.E.2d 1331;  People v. Boyer, 31 A.D.3d 1136, 1138, 817 N.Y.S.2d 813, lv. denied 7 N.Y.3d 865, 824 N.Y.S.2d 610, 857 N.E.2d 1141;  People v. Ochoa, 142 A.D.2d 741, 531 N.Y.S.2d 124, lv. denied 72 N.Y.2d 1048, 534 N.Y.S.2d 947, 531 N.E.2d 667).

 Defendant failed to preserve for our review his contentions that the court's instruction with respect to the element of intent and the court's responses to the jury's questions concerning that instruction were inadequate (see CPL 470.05[2] ).   In any event, both of those contentions are without merit.   The court's initial instructions defining intent as well as the elements of second degree intentional murder were identical to the instructions contained in the Pattern Criminal Jury Instructions and were proper (see People v. Regan, 21 A.D.3d 1357, 1358, 801 N.Y.S.2d 445;  People v. Brown, 250 A.D.2d 774, 775, 671 N.Y.S.2d 1007, lv. denied 92 N.Y.2d 894, 680 N.Y.S.2d 58, 702 N.E.2d 843).   Further, following the court's fourth readback of the instruction for second degree intentional murder, the jury did not indicate any confusion or dissatisfaction.   Thus, the court's readback of the charge was an adequate response to the jury's inquiries, and no further instruction on intent was required (see People v. Smith, 255 A.D.2d 404, 680 N.Y.S.2d 556, lv. denied 93 N.Y.2d 878, 689 N.Y.S.2d 440, 711 N.E.2d 654;  People v. Davis, 118 A.D.2d 206, 211-212, 504 N.Y.S.2d 885, lv. denied 68 N.Y.2d 768, 506 N.Y.S.2d 1052, 498 N.E.2d 154).   Contrary to the further contention of defendant, he was not deprived of effective assistance of counsel.  “There can be no denial of effective assistance of trial counsel arising from counsel's failure to ‘make a motion or argument that has little or no chance of success' ” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213, quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883, rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671).   As we previously concluded, there is no merit to defendant's contentions concerning the alleged legal insufficiency of the evidence and the allegedly inadequate charge, and we thus conclude that defense counsel was not ineffective in failing to raise those contentions (see e.g. People v. Dozier, 32 A.D.3d 1346, 1347, 821 N.Y.S.2d 726, lv. dismissed 8 N.Y.3d 880, 832 N.Y.S.2d 492, 864 N.E.2d 622;  People v. Lascelle, 23 A.D.3d 1137, 1138, 807 N.Y.S.2d 750, lv. denied 6 N.Y.3d 755, 810 N.Y.S.2d 423, 843 N.E.2d 1163).

 We also reject the contention of defendant that the court erred in refusing to suppress his statements to the police.   The right to counsel as set forth in People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709 does not extend to the situation presented in this case, in which defendant was arrested on a bench warrant for a prior pending unrelated charge and then, after waiving his Miranda rights, was questioned only on the new charges, i.e., the shooting of the victim in this case (see People v. Cawley, 76 N.Y.2d 331, 348-349, 559 N.Y.S.2d 474, 558 N.E.2d 1011, rearg. denied 76 N.Y.2d 890, 561 N.Y.S.2d 551, 562 N.E.2d 876;  People v. Clarke, 298 A.D.2d 259, 748 N.Y.S.2d 376, lv. denied 99 N.Y.2d 613, 757 N.Y.S.2d 823, 787 N.E.2d 1169;  People v. Windbush, 202 A.D.2d 527, 609 N.Y.S.2d 53, lv. denied 83 N.Y.2d 878, 613 N.Y.S.2d 138, 635 N.E.2d 307).   Where, as here, the defendant is arrested on a bench warrant and there is thus a break in custody, the Rogers derivative right to counsel rule is not violated (see Clarke, 298 A.D.2d 259, 748 N.Y.S.2d 376;  Windbush, 202 A.D.2d 527, 609 N.Y.S.2d 53).

 Finally, contrary to the contention of defendant, the court properly denied his request for an instruction concerning an alleged impeachment by benefit conferred on a witness.   Here, the prosecution did not confer or reach any understanding with the witness with respect to any benefit he was to receive as a result of either his grand jury or trial testimony.   Rather, the witness received immunity pursuant to CPL 190.40 by operation of law because of his grand jury testimony and, indeed, the witness was unaware that he had received that immunity.   Consequently, there was no basis for the jury to conclude that any benefit he received might have affected the truthfulness of that testimony (see 1 CJI[NY] 7.24), and the court properly refused to give the impeachment by benefit conferred instruction.

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

MEMORANDUM: