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People v. McCutcheon

Supreme Court, Appellate Division, Fourth Department, New York.
Sep 29, 2023
219 A.D.3d 1698 (N.Y. App. Div. 2023)

Opinion

663 KA 19-00976

09-29-2023

The PEOPLE of the State of New York, Respondent, v. Tevin MCCUTCHEON, Defendant-Appellant.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., LINDLEY, OGDEN, NOWAK, AND DELCONTE, 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 nonjury verdict of murder in the second degree ( Penal Law § 125.25 [1] ) and criminal possession of a weapon in the second degree (§ 265.03 [3]). Defendant's conviction stems from an incident in which he shot a man in the back of the head, killing him.

Defendant contends that he was denied effective assistance of counsel because defense counsel had an actual conflict of interest. "Under the state and federal constitutions, a criminal defendant is entitled to the effective assistance of counsel, defined as ‘representation that is reasonably competent, conflict-free and singlemindedly devoted to the client's best interests’ " ( People v. Ennis , 11 N.Y.3d 403, 409-410, 872 N.Y.S.2d 364, 900 N.E.2d 915 [2008], cert denied 556 U.S. 1240, 129 S.Ct. 2383, 173 L.Ed.2d 1301 [2009] ). "An actual conflict exists if an attorney simultaneously represents clients whose interests are opposed ... and, in such situations, reversal is required if the defendant does not waive the actual conflict" ( People v. Sanchez , 21 N.Y.3d 216, 223, 969 N.Y.S.2d 840, 991 N.E.2d 698 [2013] ). Defendant contends that there was an actual conflict of interest based on defense counsel's mentoring relationship with the attorney representing defendant's accomplice, which defendant analogizes to conflicts arising from joint representation, and thus contends that County Court's failure to inquire and obtain defendant's waiver of the conflict requires reversal. We conclude that "defendant ‘has not sustained his burden of establishing ineffectiveness, but that he is not precluded from raising this issue in a CPL article 440 proceeding that would permit further factual development of the circumstances pertaining to the claimed conflict’ " ( People v. Brooks , 125 A.D.3d 1381, 1382, 3 N.Y.S.3d 517 [4th Dept. 2015], quoting Sanchez , 21 N.Y.3d at 220, 969 N.Y.S.2d 840, 991 N.E.2d 698 ; see People v. Spencer , 191 A.D.3d 1331, 1332-1333, 140 N.Y.S.3d 656 [4th Dept. 2021], lv denied 37 N.Y.3d 960, 147 N.Y.S.3d 544, 170 N.E.3d 418 [2021] ; People v. Maltese , 148 A.D.3d 1780, 1783, 50 N.Y.S.3d 770 [4th Dept. 2017], lv denied 29 N.Y.3d 1093, 63 N.Y.S.3d 9, 85 N.E.3d 104 [2017] ).

Defendant next contends that the evidence is legally insufficient to support the conviction because the testimony of the accomplice was not sufficiently corroborated. We reject that contention. Accomplice testimony must be corroborated by evidence "tending to connect the defendant with the commission of [an] offense" ( CPL 60.22 [1] ). Here, several witnesses provided testimony that " ‘tend[ed] to connect ... defendant with the commission of the crime in such a way as [could] reasonably satisfy the [factfinder] that the accomplice [was] telling the truth’ " ( People v. Reome , 15 N.Y.3d 188, 192, 906 N.Y.S.2d 788, 933 N.E.2d 186 [2010] ; see People v. Lipford , 129 A.D.3d 1528, 1529, 11 N.Y.S.3d 763 [4th Dept. 2015], lv denied 26 N.Y.3d 1041, 22 N.Y.S.3d 170, 43 N.E.3d 380 [2015] ). Furthermore, viewing the evidence in light of the elements of the crimes in this nonjury trial (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] ). On the record before us, the testimony adduced at trial, and any inconsistencies contained therein, "merely presented issues of credibility for the factfinder to resolve" ( People v. Williams , 179 A.D.3d 1502, 1503, 118 N.Y.S.3d 847 [4th Dept. 2020], lv denied 35 N.Y.3d 995, 125 N.Y.S.3d 635, 149 N.E.3d 396 [2020] ; see People v. Withrow , 170 A.D.3d 1578, 1579, 95 N.Y.S.3d 696 [4th Dept. 2019], lv denied 34 N.Y.3d 940, 109 N.Y.S.3d 740, 133 N.E.3d 444 [2019], reconsideration denied 34 N.Y.3d 1020, 114 N.Y.S.3d 745, 138 N.E.3d 474 [2019] ), and we see no reason to disturb the court's credibility determinations here.

To the extent defendant contends that he was penalized for exercising his right to a trial, that contention is not preserved for our review (see People v. Hurley , 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017 [1990] ; People v. Hendricks , 214 A.D.3d 1466, 1467, 184 N.Y.S.3d 659 [4th Dept. 2023], lv dismissed 40 N.Y.3d 929, 192 N.Y.S.3d 518, 213 N.E.3d 660 [2023] ). In any event, it is without merit (see People v. Roberts , 213 A.D.3d 1348, 1350-1351, 183 N.Y.S.3d 224 [4th Dept. 2023], lv denied 40 N.Y.3d 930, 192 N.Y.S.3d 506, 213 N.E.3d 648 [2023] ; People v. Becraft , 140 A.D.3d 1706, 1706, 34 N.Y.S.3d 301 [4th Dept. 2016], lv denied 29 N.Y.3d 946, 54 N.Y.S.3d 377, 76 N.E.3d 1080 [2017] ). Finally, the sentence is not unduly harsh or severe.


Summaries of

People v. McCutcheon

Supreme Court, Appellate Division, Fourth Department, New York.
Sep 29, 2023
219 A.D.3d 1698 (N.Y. App. Div. 2023)
Case details for

People v. McCutcheon

Case Details

Full title:The PEOPLE of the State of New York, Respondent, v. Tevin MCCUTCHEON…

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

Date published: Sep 29, 2023

Citations

219 A.D.3d 1698 (N.Y. App. Div. 2023)
197 N.Y.S.3d 627

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