         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
56
KA 09-02148
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRYON DRENNAN, DEFENDANT-APPELLANT.


TYSON BLUE, MACEDON, FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (MELVIN BRESSLER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wayne County Court (Dennis M.
Kehoe, J.), rendered October 29, 2009. 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 County Court erred in refusing to suppress his
statements to the police. We reject that contention. The evidence at
the suppression hearing establishes that, after the police questioned
defendant and his parents at their residence concerning the
whereabouts of the victim, defendant voluntarily agreed to continue
the interview at the police station and arranged his own
transportation there. While at the police station, defendant was not
handcuffed or otherwise restrained. The portion of the interview that
preceded the administration of Miranda warnings lasted only 30
minutes, during which time the questioning was largely investigatory
in nature. The record thus supports the court’s determination that
defendant’s statements made prior to the administration of Miranda
warnings were not the product of custodial interrogation (see People v
Copp, 78 AD3d 1548; People v Davis, 48 AD3d 1086, 1087, lv denied 10
NY3d 861; People v Lunderman, 19 AD3d 1067, 1068-1069, lv denied 5
NY3d 830). Defendant’s remaining statements were made after he waived
his Miranda rights, having acknowledged that he understood those
rights (see People v Morgan, 75 AD3d 1050, 1054, lv denied 15 NY3d
894).

     Defendant failed to preserve for our review his contention
concerning the alleged legal insufficiency of the evidence inasmuch as
he failed to renew his motion for a trial order of dismissal after
presenting evidence (see People v Hines, 97 NY2d 56, 61, rearg denied
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                                                         KA 09-02148

97 NY2d 678; People v Roundtree, 75 AD3d 1136, lv denied 15 NY3d 855).
In any event, the evidence, viewed in the light most favorable to the
People (see People v Contes, 60 NY2d 620, 621), is legally sufficient
to establish that defendant caused the death of the victim and
intended to do so (see Penal Law § 125.25 [1]; see generally People v
Bleakley, 69 NY2d 490, 495). Further, 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 conclude that the verdict is not
against the weight of the evidence (see generally Bleakley, 69 NY2d at
495). Indeed, we conclude that an acquittal would have been
unreasonable, based upon the credible evidence presented at trial (see
People v Rickard, 71 AD3d 1420, 1422, lv denied 15 NY3d 809; see
generally Danielson, 9 NY3d at 348-349; Bleakley, 69 NY2d at 495).

     We reject the contention of defendant that he was denied
effective assistance of counsel. There is no support in the record
for defendant’s assertion that defense counsel failed to investigate
his case and, indeed, the record belies that assertion. With respect
to defendant’s contention that defense counsel failed to call expert
witnesses to rebut the expert testimony presented by the People, we
note that the court granted defense counsel’s request for an
adjournment to enable defense counsel to contact expert witnesses and
to conduct additional testing and, in addition, defense counsel also
sought authorization from the court to retain a psychiatrist to
evaluate defendant. Defense counsel’s ultimate decision not to call
an expert witness was thus a matter of strategy that cannot support
defendant’s contention that he was denied effective assistance of
counsel (see People v Bermudez, 38 AD3d 1325, lv denied 9 NY3d 840).
In any event, “ ‘[d]efendant has not demonstrated that such [expert]
testimony was available, that it would have assisted the jury in its
determination or that he was prejudiced by its absence’ ” (People v
Jurgensen, 288 AD2d 937, 938, lv denied 97 NY2d 684).

     With respect to defendant’s contention that defense counsel was
ineffective in failing to afford defendant an opportunity to testify
before the grand jury, we note that defendant waived that contention
inasmuch as he withdrew his pro se motion to dismiss the indictment on
that ground after discussing the issue with substitute counsel.
Defendant’s further contention that defense counsel allegedly failed
to challenge the validity of his confession based upon defendant’s
seizure disorder and/or medication issues and thus was ineffective on
that ground as well is unsupported by the record. In fact, defense
counsel specifically contended in support of defendant’s suppression
motion that defendant’s statements to the police were involuntary
based on defendant’s “physical and emotional condition.” Further, the
record establishes that the court was aware that defendant suffered
from epilepsy and was taking anti-seizure medication, and the record
is bereft of any evidence that defendant’s condition or medication had
any impact on the voluntariness or validity of his statements to the
police. It is well established that “[t]here can be no denial of
effective assistance of . . . counsel arising from [defense] counsel’s
failure to ‘make a motion or argument that has little or no chance of
success’ ” (People v Caban, 5 NY3d 143, 152). Based on our review of
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                                                         KA 09-02148

the record, we conclude that “the evidence, the law, and the
circumstances of [this] case, viewed in totality and as of the time of
the representation, reveal that [defense counsel] provided meaningful
representation” (People v Baldi, 54 NY2d 137, 147).

     Finally, in light of the brutal nature of the crime and
defendant’s lack of remorse, it cannot be said that the sentence
imposed is unduly harsh or severe.




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
