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

The PEOPLE of the State of New York, Respondent, v. Lucius WRIGHT, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., HURLBUTT, GORSKI, CENTRA, AND GREEN, JJ. Edward J. Nowak, Public Defender, Rochester (Eric Dolan of Counsel), for Defendant-Appellant. Lucius Wright, Defendant-Appellant pro se. Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him following a jury trial of, inter alia, two counts of murder in the second degree (Penal Law § 125.25[2] [depraved indifference murder], [3] [felony murder] ) and two counts of robbery in the first degree (§ 160.15[4] ). Defendant contends that the evidence is legally insufficient to support the crime of depraved indifference murder because the People failed to establish the uncommon brutality and utter wantonness required for that crime (see generally People v. Payne, 3 N.Y.3d 266, 271, 786 N.Y.S.2d 116, 819 N.E.2d 634, rearg. denied 3 N.Y.3d 767, 788 N.Y.S.2d 670, 821 N.E.2d 975).   By failing to renew his motion to dismiss after presenting evidence, defendant failed to preserve that contention for our review (see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61;  see also People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396).

 We reject the further contention of defendant that Supreme Court erred in denying his CPL 330.30 motion to set aside the verdict based on the People's failure to provide him with the written statement of one of his codefendants prior to the conclusion of the trial.   We do not agree with defendant that the statement constitutes both Brady material and newly discovered evidence.   Defendant's request for all “statements [,] ․ handwritten notes or a synopsis of statements made by any witnesses” does not constitute a specific request for statements of a codefendant whom the People do not intend to call as a witness (see generally People v. Vilardi, 76 N.Y.2d 67, 77, 556 N.Y.S.2d 518, 555 N.E.2d 915).   The codefendant's statement is not exculpatory with respect to defendant, given the accomplice liability theory presented to the jury, nor does it tend to disprove the People's theory that the shooting occurred during the course of a robbery, and it therefore does not constitute Brady material (see People v. Scott, 32 A.D.3d 1178, 1179, 821 N.Y.S.2d 339, lv. denied 8 N.Y.3d 884, 832 N.Y.S.2d 497, 864 N.E.2d 627;  see generally People v. Bond, 95 N.Y.2d 840, 843, 713 N.Y.S.2d 514, 735 N.E.2d 1279;  Vilardi, 76 N.Y.2d at 73, 556 N.Y.S.2d 518, 555 N.E.2d 915).   Even assuming, arguendo, that the statement constitutes newly discovered evidence, we conclude that it is not “of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 330.30[3] ).

Contrary to defendant's contention, the verdict with respect to felony murder 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 further conclude that defendant was not deprived of effective assistance of counsel.   In order to prevail on a claim of ineffective assistance of counsel, “ ‘it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations' for counsel's alleged shortcomings” (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584, quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698).   Defense counsel's decision to call as a witness a psychologist retained by the People to evaluate the capacity of defendant to understand and waive his Miranda rights was a reasonable and legitimate strategic decision designed to persuade the jury to discount defendant's highly inculpatory statement.   We reject the contention of defendant that defense counsel's failure to renew his dismissal motion after he presented evidence amounted to ineffective assistance of counsel.

Finally, we reject the contention of defendant in his pro se supplemental brief that the court erred in failing to read the applicable sections of the Penal Law with respect to the charged crimes when instructing the jury.

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