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

336
KA 15-00922
PRESENT: WHALEN, P.J., SMITH, CARNI, LINDLEY, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MAURICE R. HOWIE, ALSO KNOWN AS “QUELL”,
DEFENDANT-APPELLANT.


ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (ASHLEY R.
LOWRY OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered June 4, 2014. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree (two
counts) and robbery in the first degree (two counts).

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of one count of robbery in the first degree (Penal
Law § 160.15 [4]), arising from an incident that occurred on February
9, 2013, as well as two counts of murder in the second degree
(§ 125.25 [1], [3]) and one count of robbery in the first degree
(§ 160.15 [2]), arising from an incident that occurred on March 6,
2013. The 10-count indictment charged defendant with only the four
counts of which he was convicted, but he proceeded to a joint trial
with a codefendant who was charged in all 10 counts, which arose from
six separate robberies. Before trial, the other individuals charged
in the indictment successfully moved to sever their trials. Defense
counsel, however, opted against moving for severance for “strategic”
reasons, even after being made aware of potential Bruton issues
(Bruton v United States, 391 US 123). At trial, the codefendant’s
statements implicating defendant in the two incidents for which he was
charged were admitted in evidence, without objection. Defendant now
contends that the admission of those statements was erroneous.

     While we agree with defendant that the admission of those
statements violated Bruton and that Supreme Court’s curative
instruction did not alleviate the prejudice (see People v Cedeno, 27
NY3d 110, 117, cert denied ___ US ___, 137 S Ct 205), we consider
defense counsel’s strategic decisions to proceed with a joint trial
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and to consent to the admission of the codefendant’s statements to
constitute a waiver of any Bruton violation (see People v Reid, 71
AD3d 699, 700, lv denied 15 NY3d 756; see also People v Serrano, 256
AD2d 175, 176, lv denied 93 NY2d 878). Indeed, when the codefendant’s
statements were offered in evidence, defense counsel specifically
stated that he had “[n]o objection” to their admission in evidence.

      Defendant further contends that the court erred in precluding
defense counsel from cross-examining two witnesses concerning the
relocation of one of the witnesses as the result of threats made to
that witness by the codefendant’s family and the prosecution’s payment
to that witness to assist with the relocation. On the penultimate day
of testimony in this month-long trial, defense counsel moved for
severance when the trial court precluded him from cross-examining two
witnesses concerning alleged threats made to one of the two witnesses
by members of the codefendant’s family. Those threats had prompted
the witness to relocate, with financial assistance from the
prosecution. Before trial, the People sought to introduce evidence of
the threats and relocation during the direct examination of those
witnesses. The codefendant’s attorney agreed to forgo any cross-
examination concerning the financial assistance provided by the
prosecution, and defense counsel informed the court that he took no
position on the issue at that time. The court thereafter denied the
People’s request. It is well established that the court has
discretion to determine the scope of the cross-examination of a
witness (see generally People v Corby, 6 NY3d 231, 234-235) and,
contrary to defendant’s contention, we conclude that the court did not
abuse its discretion in limiting defendant’s cross-examination of
those two witnesses (see People v Gong, 30 AD3d 336, 336, lv denied 7
NY3d 812; cf. People v Gross, 71 AD3d 1526, 1527, lv denied 15 NY3d
774).

     Although defendant moved for severance based on the “single
issue” of the court’s limitation on the cross-examination of those two
witnesses, he now contends that the court should have granted his
motion for severance because of the Bruton violation “coupled with
mutually exclusive defenses.” “Because defendant on appeal raises a
different ground for severance than that set forth in his [midtrial]
motion for that relief, defendant failed to preserve for our review
his present contention in support of severance” (People v Ott, 83 AD3d
1495, 1496, lv denied 17 NY3d 808; see People v Osborne, 88 AD3d 1284,
1285, lv denied 19 NY3d 999, reconsideration denied 19 NY3d 1104). We
decline to exercise our power to review defendant’s contentions as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]). Moreover, insofar as defendant contends that severance was
warranted based on the Bruton violation, we conclude that defendant
affirmatively waived that contention (see People v Pugh, 236 AD2d 810,
811, lv denied 89 NY2d 1099).

     We reject defendant’s contention that he was denied effective
assistance of counsel based on defense counsel’s strategy in declining
to move for severance before trial and in consenting to the admission
of the codefendant’s statements. It is well settled that “a reviewing
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                                                         KA 15-00922

court must avoid confusing ‘true ineffectiveness with mere losing
tactics’ ” (People v Benevento, 91 NY2d 708, 712). Indeed, it “is not
for [the] court to second-guess whether a course chosen by defendant’s
counsel was the best trial strategy, or even a good one, so long as
defendant was afforded meaningful representation” (People v
Satterfield, 66 NY2d 796, 799-800). “To prevail on a claim of
ineffective assistance of counsel, it is incumbent on defendant to
demonstrate the absence of strategic or other legitimate explanations”
for defense counsel’s allegedly deficient conduct (People v Rivera, 71
NY2d 705, 709). Here, defense counsel specifically stated on the
record that he made a decision for strategic reasons, and we conclude
that defendant has not established that counsel’s strategy “was
inconsistent with the actions of a reasonably competent attorney”
(People v Henderson, 27 NY3d 509, 514). Defendant raises one
additional ground as a basis for his claim of ineffective assistance
of counsel, i.e., the failure to object to a misstatement made by a
prosecution witness. Viewing the evidence, the law and the
circumstances of this case, in totality and as of the time of the
representation, we conclude that defendant received meaningful
representation (see generally People v Baldi, 54 NY2d 137, 147).

     Contrary to defendant’s further contention, the evidence is
legally sufficient to support the conviction of robbery in the first
degree under Penal Law § 160.15 (4) (see generally People v Bleakley,
69 NY2d 490, 495). The surveillance photographs “provided legally
sufficient evidence from which the jury could reasonably conclude that
defendant was the male in the [photographs]” (People v Lukens, 107
AD3d 1406, 1408, lv denied 22 NY3d 957). Viewing the evidence in
light of the elements of that crime as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), we further conclude that the verdict on
that count is not against the weight of the evidence (see Bleakley, 69
NY2d at 495).

     Finally, we are not persuaded that we should exercise our
authority to modify the sentence as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [b]). As the dissent
acknowledges, defendant committed heinous crimes, one of which
resulted in an innocent man’s death. According to the presentence
report (PSR), moreover, defendant failed to appreciate the
consequences of his conduct or to exhibit any remorse. Indeed, the
PSR recounts that the officer who arrested defendant for the murder
and related robbery counts stated that defendant was smiling and
laughing both during questioning and while being arrested. In view of
the severity of the crimes and defendant’s callousness, we do not
consider this to be an appropriate case in which to exercise our
discretionary authority to reduce the sentence.

     All concur except LINDLEY, and NEMOYER, JJ., who dissent in part
and vote to modify in accordance with the following memorandum: We
respectfully dissent in part inasmuch as we conclude that the sentence
imposed on this adolescent offender is unduly harsh and severe.
Defendant was 16 years old at the time of the commission of the
instant crimes and had no prior criminal record. With respect to the
robbery that occurred on February 9, 2013, defendant was sentenced to
                                 -4-                           336
                                                         KA 15-00922

a determinate term of incarceration of 10 years. With respect to the
robbery and murder that occurred on March 6, 2013, defendant received
sentences of 7 years and 25 years to life, respectively. It should be
noted that defendant thus received the maximum possible sentence for
his conviction of murder (see Penal Law § 70.00 [2] [a]; [3] [a]), and
we would not disturb that sentence. The sentences related to the
March 6 crimes were ordered to run consecutively to the sentence
imposed on the February 9 crime. Supreme Court considered but
rejected youthful offender adjudication for the two robbery
convictions.

     “As the United States Supreme Court has recognized, ‘developments
in psychology and brain science continue to show fundamental
differences between juvenile and adult minds. For example, parts of
the brain involved in behavior control continue to mature through late
adolescence’ ” (People v Rudolph, 21 NY3d 497, 506 [Graffeo, J.,
concurring], quoting Graham v Florida, 560 US 48, 67; see J.D.B. v
North Carolina, 564 US 261, 272). The Supreme Court has “[t]ime and
again” addressed those differences, “observ[ing] that children
generally are less mature and responsible than adults . . . ; that
they often lack the experience, perspective, and judgment to recognize
and avoid choices that could be detrimental to them . . . ; [and] that
they are more vulnerable or susceptible to . . . outside pressures
than adults” (J.D.B., 564 US at 272 [internal quotation marks
omitted]).

     In her concurring opinion in Rudolph, Judge Graffeo addressed the
fact that “sociological studies [have] establish[ed] that young people
often possess ‘an underdeveloped sense of responsibility,’ which can
‘result in impetuous and ill-considered actions and decisions’ ” (id.,
quoting Johnson v Texas, 590 US 350, 367, reh denied 509 US 941).
Judge Graffeo further wrote that “[y]oung people who find themselves
in the criminal courts are not comparable to adults in many
respects–and our jurisprudence should reflect that fact” (id.). In
our view, this is one case where we should exercise our discretion and
reduce the sentence.

     Here, as noted, defendant was only 16 years old when he committed
the crimes, and he was known by his coaches and teachers to be a
polite and respectful high school student. His “downward spiral”
happened so fast that neither his coaches nor his father could stop
it. We note that the two crimes occurred within a one-month span;
that defendant was not the actual shooter; and that defendant received
the maximum possible sentence for the murder convictions. We do not
dispute the fact that the crimes of which defendant was convicted are
heinous crimes and that his actions contributed to the death of an
innocent man. In our view, however, the sentence imposed on this
defendant, under the circumstances of this case, is unduly harsh and
severe, and we would modify the judgment by directing that all of the
sentences run concurrently with each other, which would still leave
defendant serving 25 years to life in prison.
Entered: April 28, 2017                         Frances E. Cafarell
                                                Clerk of the Court
