        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

616
KA 08-02220
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SHERROD CARTER, DEFENDANT-APPELLANT.


KATHLEEN P. REARDON, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered August 26, 2008. The judgment
convicted defendant, upon a jury verdict, of murder in the second
degree and robbery in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him, following
a jury trial, of murder in the second degree (Penal Law § 125.25 [3])
and robbery in the first degree (§ 160.15 [1]), defendant contends
that the evidence is legally insufficient to establish that any
robbery occurred and thus legally insufficient to establish that the
victim died “in the course of and in furtherance of” a robbery (§
125.25 [3]). Defendant’s contention, however, “is not preserved for
our review because defendant failed to renew his motion for a trial
order of dismissal after presenting proof” (People v Youngs, 101 AD3d
1589, 1590, lv denied 20 NY3d 1105; see People v Hines, 97 NY2d 56,
61, rearg denied 97 NY2d 678). In any event, defendant’s contention
lacks merit. As the Court of Appeals wrote in deciding the appeals of
defendant’s two accomplices, “[w]hen three men beat a fourth man
unconscious in a field, and emerge from the field as a group with one
of them carrying a pair of sneakers, the inference that the sneakers
came from the beating victim is a strong one” (People v Becoats, 17
NY3d 643, 654, cert denied ___ US ___, 132 S Ct 1970). We likewise
reject defendant’s contention that he was denied effective assistance
of counsel based on defense counsel’s failure to renew the motion for
a trial order of dismissal (see People v Pytlak, 99 AD3d 1242, 1243,
lv denied 20 NY3d 988; People v Tolliver, 93 AD3d 1150, 1151, lv
denied 19 NY3d 968; see generally People v Caban, 5 NY3d 143, 152).

     Viewing the evidence in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
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                                                        KA 08-02220

conclude that the verdict is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495). Although defense
counsel impeached portions of the testimony of the eyewitness,
defendant’s statement to the police corroborated most of her
testimony. The only portion of the eyewitness’s testimony not
corroborated by defendant’s statement concerned the conduct of
defendant after the victim got up and tried to run away. According to
the eyewitness, defendant continued to aid his accomplices in their
assault of the victim. A defense witness testified, however, that
defendant left the scene at that time, while defendant in his
statement to the police stated that he was too drunk to recall what he
did after the victim tried to run away. Thus, it was for the jury to
determine whether to credit the testimony of the defense witness or
the eyewitness on that issue. Inasmuch as the testimony of the
eyewitness “ ‘was not so inconsistent or unbelievable as to render it
incredible as a matter of law[,]’ . . . [we] see no reason to disturb
the jury’s resolution of credibility issues” (People v Adams, 59 AD3d
928, 929, lv denied 12 NY3d 813; see People v Harris, 56 AD3d 1267,
1268, lv denied 11 NY3d 925; People v Coffin, 38 AD3d 1316, 1316-1317,
lv denied 9 NY3d 841).

     In view of our conclusion that the evidence presented at trial is
legally sufficient to support the conviction, defendant’s “contention
that the evidence presented to the grand jury was legally insufficient
is not reviewable on appeal” (People v Brown, 96 AD3d 1561, 1562, lv
denied 19 NY3d 1024; see People v Snyder, 100 AD3d 1367, 1368; see
generally CPL 210.30 [6]). We further conclude that Supreme Court did
not abuse its discretion in admitting the victim’s autopsy photographs
in evidence (see generally People v Stevens, 76 NY2d 833, 835).
Defendant was initially charged with intentional murder (Penal Law §
125.25 [1]), and those photographs were relevant to establish the
severity of the assault and defendant’s intent in committing the
crimes charged (see People v Hernandez, 79 AD3d 1683, 1684, lv denied
16 NY3d 895; People v Jones, 43 AD3d 1296, 1297-1298, lv denied 9 NY3d
991, reconsideration denied 10 NY3d 812).

     Defendant further contends that the court erred in determining
that the eyewitness’s identification of defendant from a single
photograph was a confirmatory identification. We reject that
contention. The evidence at the suppression hearing established that
the eyewitness was familiar with defendant from the neighborhood, knew
the nicknames of all the alleged perpetrators, had interacted with
defendant on the day of the incident and had an opportunity to view
him during most of the criminal transaction (see e.g. People v
Whitlock, 95 AD3d 909, 909-911, lv denied 19 NY3d 978; People v
Corbin, 90 AD3d 478, 478-479, lv denied 19 NY3d 972; People v Perez,
12 AD3d 1028, 1030, lv denied 4 NY3d 801; cf. People v Coleman, 73
AD3d 1200, 1202-1203).

     To the extent that defendant contends that the count of the
indictment charging him with robbery is facially duplicitous, that
contention is not preserved for our review (see Becoats, 17 NY3d at
650). In any event, that contention lacks merit (see Becoats, 71 AD3d
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                                                        KA 08-02220

1578, 1579, affd 17 NY3d 643; People v Wright, 63 AD3d 1700, 1702,
revd on other grounds 17 NY3d 643), and we thus conclude that
defendant was not denied effective assistance of counsel based on
defense counsel’s failure to preserve that contention for our review
(see Caban, 5 NY3d at 152; People v Harris, 97 AD3d 1111, 1111-1112,
lv denied 19 NY3d 1026). Finally, although defendant’s contention
that the robbery count was rendered duplicitous by the trial testimony
does not require preservation (see People v Bradford, 61 AD3d 1419,
1420-1421, affd 15 NY3d 329; People v Snyder, 100 AD3d 1367, 1367), we
reject that contention (see Becoats, 71 AD3d at 1579, affd 17 NY3d
643; Wright, 63 AD3d at 1702, revd on other grounds 17 NY3d 643).




Entered:   June 14, 2013                       Frances E. Cafarell
                                               Clerk of the Court
