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People v. McBee

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Feb 20, 2019
169 A.D.3d 929 (N.Y. App. Div. 2019)

Opinion

2016–06991 Ind. No. 14–00715

02-20-2019

The PEOPLE, etc., Respondent, v. Dennis MCBEE, Appellant.

Thomas R. Villecco, Jericho, NY, for appellant. David M. Hoovler, District Attorney, Middletown, N.Y. (Nicholas D. Mangold of counsel), for respondent.


Thomas R. Villecco, Jericho, NY, for appellant.

David M. Hoovler, District Attorney, Middletown, N.Y. (Nicholas D. Mangold of counsel), for respondent.

WILLIAM F. MASTRO, J.P., COLLEEN D. DUFFY, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Orange County (Nicholas DeRosa, J.), rendered May 4, 2016, convicting him of murder in the second degree, robbery in the first degree, assault in the first degree, assault in the second degree, and tampering with physical evidence, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to establish that he committed or attempted to commit the robbery upon which his conviction of murder in the second degree pursuant to Penal Law § 125.25(3) was based is unpreserved for appellate review inasmuch as he did not specify this ground in support of his motion to dismiss at trial (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's commission or attempted commission of the underlying robbery beyond a reasonable doubt and, concomitantly, the defendant's guilt of murder in the second degree. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to murder in the second degree was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

The defendant's further contention that the County Court deprived him of the effective assistance of counsel by denying his request pursuant to County Law § 722–c to obtain the services of a DNA expert is belied by the record and without merit.

MASTRO, J.P., DUFFY, LASALLE and IANNACCI, JJ., concur.ENTER:Aprilanne Agostino


Summaries of

People v. McBee

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Feb 20, 2019
169 A.D.3d 929 (N.Y. App. Div. 2019)
Case details for

People v. McBee

Case Details

Full title:The People of the State of New York, respondent, v. Dennis McBee…

Court:SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Feb 20, 2019

Citations

169 A.D.3d 929 (N.Y. App. Div. 2019)
92 N.Y.S.3d 674
2019 N.Y. Slip Op. 1234