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

1221
KA 12-00122
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HILLERY M. DUPLEASIS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered January 13, 2012. 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 modified as a matter of discretion in the interest of
justice and on the law by vacating the DNA databank fee and as
modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of murder in the second degree (Penal Law §
125.25 [3]). On a prior appeal, we reversed the judgment convicting
defendant of, inter alia, the instant crime and granted a new trial
based on our conclusion that “Supreme Court failed to comply with CPL
310.30 during jury deliberations” (People v Dupleasis, 79 AD3d 1777,
1778). Defendant was retried on only one count of murder in the
second degree, and now contends that the evidence is legally
insufficient to establish that he was the individual who shot the
victim or that the homicide took place during a robbery or a burglary.
As defendant correctly concedes, he failed to preserve that contention
for our review (see People v Gray, 86 NY2d 10, 19), and we conclude in
any event that it lacks merit. The testimony of defendant’s
accomplice is legally sufficient to establish both facts (see
generally People v Bleakley, 69 NY2d 490, 495), and that testimony was
not incredible as a matter of law (see People v Shedrick, 104 AD2d
263, 274, affd 66 NY2d 1015, rearg denied 67 NY2d 758; see also People
v Santiago, 96 AD3d 1495, 1496, mod on other grounds 22 NY3d 900).
Moreover, the accomplice’s testimony was sufficiently corroborated
(see generally People v Reome, 15 NY3d 188, 191-192). “Although there
is no direct evidence of defendant’s intent to commit the robbery [or
burglary], it is well settled that ‘[i]ntent may be inferred from
                                 -2-                          1221
                                                         KA 12-00122

conduct as well as the surrounding circumstances’ ” (People v
DeNormand, 1 AD3d 1047, 1048, lv denied 1 NY3d 626, quoting People v
Steinberg, 79 NY2d 673, 682; see People v Kyler, 280 AD2d 346, 347-
348, lv denied 96 NY2d 802). Inasmuch as the evidence is legally
sufficient to support the conviction, we reject defendant’s contention
that he was denied effective assistance of counsel based on defense
counsel’s failure to move for a trial order of dismissal on more
specific grounds. “It is well settled that [a] defendant is not
denied effective assistance of trial counsel [where defense] counsel
does not make a motion or argument that has little or no chance of
success” (People v Wilson, 104 AD3d 1231, 1232, lv denied 21 NY3d
1011, reconsideration denied 21 NY3d 1078 [internal quotation marks
omitted]; see People v Webb, 60 AD3d 1291, 1292, lv denied 12 NY3d
930).

     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 Bleakley, 69 NY2d at 495).
Although an acquittal would not have been unreasonable, it cannot be
said that the jury failed to give the evidence the weight it should be
accorded (see generally id.).

     “By failing to object to the court’s ultimate Sandoval ruling,
defendant failed to preserve for our review his further contention . .
. that the ruling constitutes an abuse of discretion . . . In any
event, the court’s Sandoval ruling did not constitute a clear abuse of
discretion warranting reversal . . . The prior convictions in question
were relevant to the credibility of defendant” (People v Tolliver, 93
AD3d 1150, 1151-1152, lv denied 19 NY3d 968 [internal quotation marks
omitted]; see People v Williams, 101 AD3d 1730, 1732, lv denied 21
NY3d 1021). In our view, “the court’s ruling was a considered
decision [that] took into account all relevant factors and further
struck a proper balance between the probative value of the[ ]
convictions on defendant’s credibility and the possible prejudice to
him” (People v Poole, 79 AD3d 1685, 1686, lv denied 16 NY3d 862
[internal quotation marks omitted]).

     Finally, we conclude that the sentence is not unduly harsh or
severe but, as we noted in the prior appeal, “in view of the date on
which the crimes were committed, the court erred in imposing the DNA
databank fee” (Dupleasis, 79 AD3d at 1778; see People v Cooper, 77
AD3d 1417, 1419, lv denied 16 NY3d 742). We therefore modify the
judgment accordingly.




Entered:   December 27, 2013                    Frances E. Cafarell
                                                Clerk of the Court
