THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. TYROME ELDER DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. TYROME ELDER, DEFENDANT–APPELLANT.

KA 11–01385

Decided: July 05, 2013

PRESENT:  SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ. DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT–APPELLANT. MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[3] ), criminal possession of a weapon in the second degree (§ 265.03[3] ), criminal use of a firearm in the second degree (§ 265.08[2] ), and two counts of attempted robbery in the first degree (§§ 110.00, 160.15[3], [4] ).   Defendant failed to preserve for our review his contention that County Court erred in failing to charge the jury that a prosecution witness was an accomplice to certain of the crimes as a matter of law and that his testimony therefore required corroboration (see People v. Taylor, 57 AD3d 1518, 1518, lv denied 12 NY3d 822;  People v. Smith–Merced, 50 AD3d 259, 259, lv denied 10 NY3d 939).   In any event, even assuming, arguendo, that the prosecution witness was an accomplice as a matter of law, we conclude that his testimony was sufficiently corroborated by, inter alia, defendant's admissions to another individual who was not involved in the crimes (see People v. Taylor, 87 AD3d 1330, 1331, lv denied 17 NY3d 956).   We likewise reject defendant's further contention that he was denied effective assistance of counsel based on his attorney's failure to request that charge, inasmuch as it is well settled that an attorney's “failure to ‘make a motion or argument that has little or no chance of success' “ does not amount to ineffective assistance (People v. Caban, 5 NY3d 143, 152).

We also reject defendant's contention that the court erred in admitting as a dying declaration exception to the hearsay rule the testimony of a prosecution witness that, after being shot in the inner thigh, the victim stated, “I got robbed” and “I got shot.”   The People presented evidence establishing that, when the witness arrived at the scene, the victim was bleeding heavily from a femoral artery wound, his clothes were soaked in blood from the waist down, and he was inhaling and exhaling very hard.   The victim stated to the witness, “I'm gonna die, I'm gonna die”;  he then became totally unresponsive and, shortly thereafter, he died.   Thus, we conclude that the court properly determined that the victim's statements were made with “a sense of impending death, with no hope of recovery” (People v. Nieves, 67 N.Y.2d 125, 132;  see also People v. Walsh, 222 A.D.2d 735, 737, lv denied 88 N.Y.2d 855).

We reject the further contention of defendant that his admissions to other individuals were not sufficiently corroborated (see CPL 60.50;  People v. Smielecki, 77 AD3d 1420, 1421–1422, lv denied 15 NY3d 956).   The testimony of the Medical Examiner that the victim died from a gunshot wound and the victim's statements that he was “shot” and “robbed” satisfy the minimal corroboration requirement of CPL 60.50 that some “additional proof that the offense[s] charged [have] been committed” be presented (see People v. Lipsky, 57 N.Y.2d 560, 571, rearg. denied 58 N.Y.2d 824;  Smielecki, 77 AD3d at 1422).

Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction of criminal possession of a weapon in the second degree inasmuch as his motion for a trial order of dismissal was not “ ‘specifically directed’ at the alleged error[s]” asserted on appeal (People v. Gray, 86 N.Y.2d 10, 19).   We reject defendant's contention that the evidence is legally insufficient to support the conviction of the remaining crimes inasmuch as there is a “valid line of reasoning and permissible inferences” to lead reasonable persons to the conclusion reached by the jury based on the evidence presented at trial (People v. Bleakley, 69 N.Y.2d 490, 495).   Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), and giving the appropriate deference to the jury's credibility determinations (see People v. Hill, 74 AD3d 1782, 1782–1783, lv denied 15 NY3d 805), we reject defendant's further contention that the verdict is against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).

Finally, we have examined defendant's remaining contention and conclude that it lacks merit.

Frances E. Cafarell

Clerk of the Court