PEOPLE v. CULBREATH

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

PEOPLE of the State of New York, Respondent, v. Jeffrey CULBREATH, Appellant.

Decided: December 31, 1998

Present:  PINE, J.P., WISNER, PIGOTT, CALLAHAN and FALLON, JJ. William Broderick, Jr., Niagara Falls, for appellant. Frank J. Clark by Joseph Notaro, Buffalo, for respondent.

 Defendant appeals from a judgment convicting him of murder in the second degree (Penal Law §§ 20.00, 125.25[1] ), attempted murder in the second degree (Penal Law §§ 20.00, 110.00, 125.25[1] ) and other crimes in connection with a May 1993 shooting in the City of Buffalo.   Defendant was not denied effective assistance of counsel by defense counsel's failure to offer into evidence the statement of codefendant or to call certain witnesses.   The statement of codefendant did not qualify for admission into evidence as a declaration against penal interest (see generally, People v. Settles, 46 N.Y.2d 154, 167, 412 N.Y.S.2d 874, 385 N.E.2d 612).   Moreover, even if the statement did so qualify, we conclude that defendant was not denied effective assistance of counsel by reason of the failure to offer that statement into evidence.   Additionally, Supreme Court did not err in denying defendant's pro se motion to set aside the verdict on that ground.

 There is no merit to defendant's contention that the court erred in admitting photographs of the murder victim into evidence.   Those photographs were relevant on the issue of intent (see generally, People v. Pobliner, 32 N.Y.2d 356, 369-370, 345 N.Y.S.2d 482, 298 N.E.2d 637, rearg. denied 33 N.Y.2d 657, 348 N.Y.S.2d 1030, 303 N.E.2d 710, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110).

Defendant failed to preserve for our review his contention that his conviction of unauthorized use of a vehicle in the first degree is not supported by legally sufficient evidence (see, People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, we conclude that the conviction is supported by legally sufficient evidence and that the verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The sentence is neither unduly harsh nor severe.   Finally, we have considered the issues raised in defendant's pro se supplemental brief and conclude that they lack merit.

Judgment unanimously affirmed.

MEMORANDUM: