Opinion
722 KA 16–01161
07-24-2020
The PEOPLE of the State of New York, Respondent, v. Robert L. MOORE, III, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, CURRAN, TROUTMAN, AND WINSLOW, JJ.
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, inter alia, murder in the second degree ( Penal Law § 125.25 [3] ) and attempted robbery in the first degree (§§ 110.00, 160.15 [2] ). Viewing the evidence in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the conviction of murder in the second degree and attempted robbery in the first degree is supported by legally sufficient evidence (see People v. Alexander , 51 A.D.3d 1380, 1382–1383, 857 N.Y.S.2d 418 [4th Dept. 2008], lv denied 11 N.Y.3d 733, 864 N.Y.S.2d 392, 894 N.E.2d 656 [2008] ). Contrary to defendant's contention, there is sufficient corroboration of his recorded statement to a police informant (see CPL 60.50 ). With respect to the count of murder in the second degree, "[t]he fact that the victim was found dead as the result of a gunshot wound is sufficient corroboration" ( People v. Harper , 132 A.D.3d 1230, 1231, 17 N.Y.S.3d 797 [4th Dept. 2015], lv denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016] ). With respect to the count of attempted robbery in the first degree, in addition to defendant's statement, the People submitted evidence establishing that the victim had met with defendant at the time of the shooting in order to sell marihuana to defendant, and that the victim's clothing was torn during their brief meeting, which reflected that there was a struggle between defendant and the victim. Under these circumstances, we conclude that there is sufficient evidence corroborating defendant's statement that he had attempted to rob the victim (see generally People v. Murray , 40 N.Y.2d 327, 335, 386 N.Y.S.2d 691, 353 N.E.2d 605 [1976], rearg denied 40 N.Y.2d 1080, 392 N.Y.S.2d 1028, 360 N.E.2d 963 [1976], cert denied 430 U.S. 948, 97 S.Ct. 1586, 51 L.Ed.2d 796 [1977] ). Furthermore, viewing the evidence in light of the elements of the crimes 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 [2007] ), we conclude that the verdict 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 [1987] ).
Defendant further contends that he was denied effective assistance of counsel based on defense counsel's decision not to call a voice recognition expert or present a sample of defendant's voice to the jury, and defense counsel's decision to present a defense that largely relied on gaps in the People's proof. We reject that contention because those purported shortcomings involve " ‘matter[s] of trial strategy and cannot be characterized as ineffective assistance of counsel’ " ( People v. Atkins , 107 A.D.3d 1465, 1465, 967 N.Y.S.2d 318 [4th Dept. 2013], lv denied 21 N.Y.3d 1040, 972 N.Y.S.2d 537, 995 N.E.2d 853 [2013] ; see generally People v. Benevento , 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ). Although defendant contends that defense counsel was ineffective for failing to object to certain remarks during the prosecutor's opening and closing statements, the disputed statements regarding the victim's death were fair comment on the evidence (see People v. Fick , 167 A.D.3d 1484, 1485–1486, 90 N.Y.S.3d 421 [4th Dept. 2018], lv denied 33 N.Y.3d 948, 100 N.Y.S.3d 173, 123 N.E.3d 832 [2019] ), and the prosecutor's comments regarding the police informant who had recorded defendant's statement were a fair response to defense counsel's closing argument (see id. ; see also People v. Garrow , 171 A.D.3d 1542, 1546, 99 N.Y.S.3d 827 [4th Dept. 2019], lv denied 34 N.Y.3d 931, 109 N.Y.S.3d 752, 133 N.E.3d 459 [2019] ). Moreover, defendant failed to demonstrate the absence of a strategic or other legitimate reason for defense counsel's decision not to object to the prosecutor's comments (see People v. Freeman , 46 A.D.3d 1375, 1376, 848 N.Y.S.2d 800 [4th Dept. 2007], lv denied 10 N.Y.3d 840, 859 N.Y.S.2d 399, 889 N.E.2d 86 [2008] ). Regarding defense counsel's own opening statement, "[d]efendant's complaint about defense counsel's performance during opening ... argument[ ] ‘merely amounts to a second-guessing of counsel's trial strategy and does not establish ineffectiveness’ " ( People v. Simpson , 173 A.D.3d 1617, 1620, 102 N.Y.S.3d 357 [4th Dept. 2019], lv denied 34 N.Y.3d 954, 110 N.Y.S.3d 631, 134 N.E.3d 630 [2019] ). Defendant failed to establish that there was no strategic or other legitimate reason for defense counsel's failure to object to testimony that the police informant had served as an informant previously (see Freeman , 46 A.D.3d at 1376, 848 N.Y.S.2d 800 ), and defense counsel was not ineffective for requesting an inapplicable lesser included offense (see generally People v. Hancock , 43 A.D.3d 1380, 1380–1381, 842 N.Y.S.2d 650 [4th Dept. 2007], lv denied 9 N.Y.3d 1034, 852 N.Y.S.2d 20, 881 N.E.2d 1207 [2008] ).
We also reject defendant's contention that County Court erred in overruling defense counsel's hearsay objections regarding testimony from a law enforcement witness and the police informant. That testimony was not admitted for its truth, but rather to complete the narrative by explaining subsequent actions taken by the witnesses, i.e., explaining how and why the police informant became involved in the investigation and how the police informant came to meet with defendant in order to record defendant's statement (see People v. Failing , 129 A.D.3d 1677, 1678–1679, 13 N.Y.S.3d 717 [4th Dept. 2015], lv denied 26 N.Y.3d 967, 18 N.Y.S.3d 603, 40 N.E.3d 581 [2015] ). Finally, the sentence is not unduly harsh or severe.