Opinion
2011-12-23
The PEOPLE of the State of New York, Respondent, v. Jay J. BARBONI, Defendant–Appellant.
Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant. Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of Counsel), for Respondent.
Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant. Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of Counsel), for Respondent.
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[4] [depraved indifference murder] ) and manslaughter in the first degree (§ 125.20[4] ), defendant contends that he was denied effective assistance of counsel during jury selection. We reject that contention. “The alleged error[ ] in defense counsel's representation [during jury selection is a] mere disagreement[ ] with defense counsel's ... tactics, and defendant has failed to establish ‘the absence of strategic or other legitimate explanations' for defense counsel's alleged shortcomings” ( People v. Martin, 79 A.D.3d 1793, 1793, 913 N.Y.S.2d 607, lv. denied 16 N.Y.3d 861, 923 N.Y.S.2d 423, 947 N.E.2d 1202, quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698).
We also reject defendant's challenge to the legal sufficiency of the evidence supporting the conviction of depraved indifference murder ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Contrary to the contention of defendant, the evidence is legally sufficient to establish that he possessed the requisite culpable mental state to support that conviction ( see People v. Varmette, 70 A.D.3d 1167, 1169–1171, 895 N.Y.S.2d 239, lv. denied 14 N.Y.3d 845, 901 N.Y.S.2d 152, 927 N.E.2d 573; People v. Griffin, 48 A.D.3d 1233, 1234–1235, 851 N.Y.S.2d 808, lv. denied 10 N.Y.3d 840, 859 N.Y.S.2d 399, 889 N.E.2d 86; People v. Bowman, 48 A.D.3d 178, 184–185, 847 N.Y.S.2d 536, lv. denied 10 N.Y.3d 808, 857 N.Y.S.2d 42, 886 N.E.2d 807; People v. Maddox, 31 A.D.3d 970, 971–972, 818 N.Y.S.2d 664, lv. denied 7 N.Y.3d 868, 824 N.Y.S.2d 613, 857 N.E.2d 1144; cf. People v. Lewie, 17 N.Y.3d 348, 359–360, 929 N.Y.S.2d 522, 953 N.E.2d 760; see generally People v. Suarez, 6 N.Y.3d 202, 210–213, 811 N.Y.S.2d 267, 844 N.E.2d 721). Indeed, the evidence establishes that, on the day the crimes occurred, the victim, a 15–month–old child, was happy and healthy before he was left alone with defendant. The expert medical testimony presented by the People demonstrates that the child sustained at least five traumatic blows to the head, which led to brain swelling that caused his death, and that he sustained other injuries that would have resulted in legal blindness had he survived. The injuries at issue were caused by trauma that occurred approximately two hours before the child's death, during which time he was in the sole care of defendant.
The record further establishes that the child's suffering yielded an apathetic response from defendant. Around 8:00 p.m. on the night of the child's death, defendant telephoned his girlfriend, who was the mother of the child, and informed her that she needed to come home because the child was not breathing. When the mother arrived approximately two minutes later, she ran past defendant, who was in the kitchen of her apartment and said to the mother that “he didn't know what happened.” When the mother reached the child's crib on the second floor of the apartment, she observed that the child was blue and not breathing. Although defendant did not seek medical assistance for him, the child was transported to a hospital, where he was pronounced dead at 8:20 p.m. The evidence, viewed 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), is also legally sufficient to support the conviction of manslaughter in the first degree ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). 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), we conclude that the verdict is not 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).
We also conclude that there is no merit to defendant's contention that County Court erred in refusing to suppress certain physical evidence on the ground that it was illegally seized, inasmuch as defendant and the attorney who represented him when he was questioned by the police consented to the seizure of the evidence in question ( cf. People v. Farrell, 42 A.D.3d 954, 839 N.Y.S.2d 875). Defendant further contends that he was denied effective assistance of counsel based on that attorney's consent to the seizure. “Even assuming, [arguendo, that] the right to effective assistance of counsel attached prior to [the seizure of the physical evidence in question] and that suppression is the appropriate remedy where a [seizure arises from] ineffective assistance of counsel” ( People v. Carncross, 14 N.Y.3d 319, 331, 901 N.Y.S.2d 112, 927 N.E.2d 532), we reject defendant's contention inasmuch as he failed to demonstrate the absence of a strategic explanation for that attorney's alleged shortcomings ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.