Opinion
09-30-2016
The PEOPLE of the State of New York, Respondent, v. Jason L. CLARK, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Jon P. Getz of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Jon P. Getz of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, DeJOSEPH, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM: On appeal from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ), defendant contends that Supreme Court abused its discretion in denying that part of his omnibus motion seeking funds to retain an investigator and a ballistics expert pursuant to County Law § 722–c. We reject that contention inasmuch as defendant failed to establish that such services were “necessary to his defense” (People v. Clarke, 110 A.D.3d 1341, 1342, 975 N.Y.S.2d 194, lv. denied 22 N.Y.3d 1197, 986 N.Y.S.2d 418, 9 N.E.3d 913 ; see People v. Brown, 67 A.D.3d 1369, 1370, 888 N.Y.S.2d 819, lv. denied 14 N.Y.3d 886, 903 N.Y.S.2d 774, 929 N.E.2d 1009 ; People v. Coleman, 45 A.D.3d 432, 433, 846 N.Y.S.2d 53, lv. denied 10 N.Y.3d 763, 854 N.Y.S.2d 324, 883 N.E.2d 1259 ).
Inasmuch as defendant did not object to the charge conference being held off the record in chambers, his contention that the court erred in failing to record the charge conference stenographically is not preserved for our review (see People v. Vasquez, 89 N.Y.2d 521, 534, 655 N.Y.S.2d 870, 678 N.E.2d 482, cert. denied 522 U.S. 846, 118 S.Ct. 131, 139 L.Ed.2d 80 ; People v. Samuels, 291 A.D.2d 823, 824, 737 N.Y.S.2d 892, lv. denied 98 N.Y.2d 655, 745 N.Y.S.2d 514, 772 N.E.2d 617 ; see generally Judiciary Law § 295 ). In any event, “defendant failed to show any prejudice he suffered as a result of that conference not being transcribed” (People v. Richard, 30 A.D.3d 750, 754, 817 N.Y.S.2d 698, lv. denied 7 N.Y.3d 869, 824 N.Y.S.2d 614, 857 N.E.2d 1145 ; see generally People v. Harrison, 85 N.Y.2d 794, 796, 628 N.Y.S.2d 939, 652 N.E.2d 638 ). Moreover, we conclude that any challenge by defendant to the adequacy of the jury charge is not preserved for our review because defendant failed to object to the jury charge as given (see CPL 470.05[2] ; Richard, 30 A.D.3d at 754–755, 817 N.Y.S.2d 698 ; see generally People v. Robinson, 88 N.Y.2d 1001, 1001–1002, 648 N.Y.S.2d 869, 671 N.E.2d 1266 ). To the extent that defendant asserts an ineffective assistance of counsel claim on the ground that defense counsel could have sought certain jury charges, that claim involves matters outside the record on appeal in this case and thus is properly raised by way of a motion pursuant to CPL article 440 (see generally People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ).
We reject defendant's contention that the evidence is legally insufficient to support the conviction. “It is well settled that, even in circumstantial evidence cases, the standard for appellate review of legal sufficiency issues is whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the [jury] on the basis of the evidence at trial, viewed in the light most favorable to the People” (People v. Hines, 97 N.Y.2d 56, 62, 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 [internal quotation marks omitted]; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Here, “[t]he fact that no one saw defendant fire the shot that killed the victim does not render the evidence legally insufficient, inasmuch as there was ample circumstantial evidence establishing defendant's identity as the shooter” (People v. Moore [Appeal No. 2], 78 A.D.3d 1658, 1659, 912 N.Y.S.2d 825, lv. denied 17 N.Y.3d 798, 929 N.Y.S.2d 106, 952 N.E.2d 1101 ). Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), 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, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). “Even assuming, arguendo, that a different verdict would not have been unreasonable, [we note that] ‘the jury was in the best position to assess the credibility of the witnesses and, on this record, it cannot be said that the jury failed to give the evidence the weight it should be accorded’ ” (People v. Chelley, 121 A.D.3d 1505, 1506, 993 N.Y.S.2d 597, lv. denied 24 N.Y.3d 1218, 4 N.Y.S.3d 606, 28 N.E.3d 42, reconsideration denied 25 N.Y.3d 1070, 12 N.Y.S.3d 622, 34 N.E.3d 373 ).
Finally, we conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.