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

409
KA 11-00487
PRESENT: SMITH, J.P., VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MATTHEW M. CARSON, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (David
D. Egan, J.), rendered August 26, 2010. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree and
criminal possession of a weapon in the second degree (two counts).

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of murder in the second degree (Penal Law § 125.25
[1]) and two counts of criminal possession of a weapon in the second
degree (§ 265.03 [1] [b]; [3]). The People established at trial that
the victim and a friend were standing near the victim’s residence when
defendant approached them. Defendant and the victim had a heated
verbal exchange that resulted in defendant pulling a gun on the
victim. Defendant then left the area, but he reappeared a few minutes
later and fired three shots, one of which struck and killed the
victim. Both altercations were observed by two eyewitnesses at the
YMCA located across the street from the victim’s residence. The
altercations were also recorded by a video camera located outside a
store that had a view of the YMCA and the sidewalk in front of the
victim’s residence. Viewing the evidence at trial in light of the
elements of the crimes 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 People v Bleakley, 69 NY2d 490,
495). Contrary to defendant’s contention, any discrepancies between
defendant’s appearance and the eyewitness testimony at trial presented
mere credibility issues for the jury (see People v Wilkins, 75 AD3d
847, 848, lv denied 15 NY3d 857; People v Smith, 267 AD2d 407, 408).
We conclude that “this is not an appropriate case [for this Court] to
substitute [its] reliability determinations for those of the jury”
(People v Davis, 115 AD3d 1167, 1168, lv denied 23 NY3d 1019).
                                 -2-                           409
                                                         KA 11-00487

     Defendant failed to preserve for our review his contention that
the photo array procedure was unduly suggestive because his photo
presented a substantially narrower face than the other individuals
displayed in the array inasmuch as he did not make that argument at
the Wade hearing (see People v Barkerx, 114 AD3d 1244, 1247-1248, lv
denied 22 NY3d 1196; People v Bell, 19 AD3d 1074, 1075, lv denied 5
NY3d 803, reconsideration denied 5 NY3d 850). We similarly conclude
that defendant failed to preserve for our review his contention that
the prospective jurors were not given the requisite oath pursuant to
CPL 270.15 (1) (a) (see People v Gaston, 104 AD3d 1206, 1207, lv
denied 22 NY3d 1156; People v Schrock, 73 AD3d 1429, 1432, lv denied
15 NY3d 855). 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]).

     We also conclude that defendant “knowingly, intelligently and
voluntarily waived his right to be present at sidebar conferences, as
evidenced by the written waiver signed by defendant, defense counsel,
and [Supreme C]ourt” (People v Conway, 277 AD2d 1020, 1020, lv denied
96 NY2d 782; see People v Jones, 111 AD3d 1148, 1149-1150, lv denied
23 NY3d 1063, 24 NY3d 1044), and we thus reject his contention that
his exclusion from a sidebar conference requires reversal. In any
event, that contention is without merit because there can be no
violation of defendant’s right to be present where, as here, a
prospective juror was excused for cause by the court (see People v
Maher, 89 NY2d 318, 325; People v Jordan, 88 AD3d 580, 580, lv denied
18 NY3d 884; cf. People v Davidson, 89 NY2d 881, 882-883). Finally,
we reject defendant’s contention that he received ineffective
assistance of counsel. Viewing the evidence, the law, and the
circumstances of the 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).




Entered:   March 27, 2015                      Frances E. Cafarell
                                               Clerk of the Court
