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

176
KA 11-00406
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

VICTOR GASTON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered January 19, 2011. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of murder in the second degree (Penal Law § 125.25 [1]),
defendant contends that the 17-year preindictment delay violated his
constitutional right to a speedy trial. We reject that contention.
In examining the Taranovich factors (People v Taranovich, 37 NY2d 442,
445), we conclude that, although the 17-year preindictment delay was
substantial, the nature of the charge was serious, and defendant
remained at liberty until he was indicted. Moreover, the People met
their burden of establishing a good-faith basis for the delay (see
People v Decker, 13 NY3d 12, 14-16; People v Chatt, 77 AD3d 1285,
1285, lv denied 17 NY3d 793). In particular, they established that
there was insufficient evidence to charge defendant shortly after the
crimes occurred, and it was not until a witness gave new information
to the police that identified defendant as the perpetrator and DNA
testing was completed that the People brought the charges against
defendant. While the delay may have caused some degree of prejudice
to defendant, “ ‘a determination made in good faith to delay
prosecution for sufficient reasons will not deprive defendant of due
process even though there may be some prejudice to defendant’ ”
(Decker, 13 NY3d at 14).

     Defendant further contends that his right to be tried and
convicted of only those crimes and upon only those theories charged in
the indictment was violated (see generally People v Grega, 72 NY2d
489, 495-496). We reject that contention. The indictment here
                                 -2-                           176
                                                         KA 11-00406

charged defendant with causing the victim’s death “by stabbing and
beating her,” and the evidence at trial established that the victim
died as a result of the stab wounds. We conclude that the fact that
the indictment included the “beating” allegation does not require
reversal (see generally People v Charles, 61 NY2d 321, 327-328; People
v Rooney, 57 NY2d 822, 823). Defendant failed to preserve for our
review his further contentions that County Court failed to administer
the requisite oath to the prospective jurors pursuant to CPL 270.15
(1) (a) (see People v Schrock, 73 AD3d 1429, 1432, lv denied 15 NY3d
855; People v Dickens, 48 AD3d 1034, 1034, lv denied 10 NY3d 958) and
violated his right to trial by jury when certain exhibits were
received in evidence in the jury’s absence (see CPL 470.05 [2]). We
decline to exercise our power to review those contentions as a matter
of discretion in the interest of justice (see CPL 470.15 [6] [a]).

     Defendant’s contention that the evidence is legally insufficient
to support the conviction is preserved for our review only to the
extent that he contends that the testimony of the main prosecution
witness was incredible as a matter of law (see People v Gray, 86 NY2d
10, 19). We reject that contention (see People v Moore [appeal No.
2], 78 AD3d 1658, 1659-1660, lv denied 17 NY3d 798). It cannot be
said that his testimony was “manifestly untrue, physically impossible,
contrary to experience, or self-contradictory” (People v Harris, 56
AD3d 1267, 1268, lv denied 11 NY3d 925). Viewing the evidence in
light of the elements of the crime as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), we reject defendant’s further
contention that the verdict is against the weight of the evidence (see
generally People v Bleakley, 69 NY2d 490, 495).

     Defendant contends that he was denied a fair trial by the
cumulative effect of alleged errors, but almost all of the alleged
errors have not been preserved for our review (see CPL 470.05 [2]).
In any event, we reject that contention (see People v Gonzalez, 52
AD3d 1228, 1229, lv denied 11 NY3d 788; People v Wurthmann, 26 AD3d
830, 831, lv denied 7 NY3d 765). We reject defendant’s further
contention that he received ineffective assistance of counsel.
Viewing the evidence, the law, and the circumstances of this case, in
totality and as of the time of the representation, we conclude that
defense counsel provided meaningful representation (see generally
People v Baldi, 54 NY2d 137, 147). Finally, the sentence is not
unduly harsh or severe.




Entered:   March 15, 2013                       Frances E. Cafarell
                                                Clerk of the Court
