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

1373
KA 11-00287
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EARL HOWARD, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered January 4, 2011. The judgment convicted
defendant, upon a nonjury verdict, of murder in the second degree and
criminal possession of a weapon 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
nonjury verdict of murder in the second degree (Penal Law § 125.25
[1]) and criminal possession of a weapon in the second degree (§
265.03 [3]), defendant contends that the verdict is against the weight
of the evidence. We reject that contention. Viewing the evidence in
light of the elements of the crimes in this nonjury trial (see People
v Danielson, 9 NY3d 342, 349), we conclude that, although a different
verdict would not have been unreasonable, County Court did not fail to
give the evidence the weight it should be accorded (see People v
Johnson, 94 AD3d 1563, 1564, lv denied 19 NY3d 962; see generally
People v Bleakley, 69 NY2d 490, 495). Three witnesses who had lived
on the same street with defendant testified at trial that they saw
defendant shoot the victim. Another witness, who previously had been
defendant’s drug-dealing associate, testified that defendant admitted
to him that he shot the victim, and the People also presented
uncontroverted circumstantial evidence of defendant’s consciousness of
guilt, i.e., that he moved to California several days after the
shooting (see People v Westbrooks, 90 AD3d 1536, 1536, lv denied 18
NY3d 963). Although defendant challenges the credibility of the
prosecution witnesses on various grounds, the court stated that it
found the testimony of those witnesses to be “unequivocal and rather
compelling.” It is well settled that “ ‘credibility determinations by
the court . . . are entitled to great deference’ ” (People v Wall, 48
AD3d 1107, 1108, lv denied 11 NY3d 742), and minor inconsistencies in
                                 -2-                          1373
                                                         KA 11-00287

the testimony of certain prosecution witnesses do not render their
testimony incredible as a matter of law (see People v Coble, 94 AD3d
1520, 1522, lv denied 19 NY3d 995).

     We also reject defendant’s contention that he received
ineffective assistance of counsel because his trial attorney failed to
object to the introduction of various photographs of defendant
depicting him, in defendant’s words, as a “gleeful, defiant outlaw.”
“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 alleged
deficiency (People v Rivera, 71 NY2d 705, 709), and defendant failed
to do so here. Indeed, the record establishes that the court in this
nonjury trial was aware from other evidence, including defendant’s own
testimony, that defendant was a drug dealer with a prior criminal
record, which may have been the basis for defense counsel’s failure to
object to the admissibility of the photographs. In any event, even
assuming, arguendo, that it was error for defense counsel not to
object to the photographs, we conclude that the single alleged failure
was not “sufficiently egregious and prejudicial as to compromise . . .
defendant’s right to a fair trial” (People v Caban, 5 NY3d 143, 152;
see People v Cosby, 82 AD3d 63, 67, lv denied 16 NY3d 857).

     Contrary to defendant’s further contention, the court did not err
in allowing a prosecution witness to testify that defendant told the
witness that he returned to Buffalo from California because “the
detectives came out there to [defendant’s] house so he came back.” As
the People assert, that testimony, although hearsay, was admissible
“as an admission inconsistent with defendant’s innocence” (People v
McCray, 227 AD2d 900, 900, lv denied 89 NY2d 866). The fact that
defendant returned to Buffalo after the police discovered his location
in California tends to support the prosecution’s theory that defendant
fled to California after the shooting to avoid arrest, and that he did
not go there simply because his mother thought that he needed a
“different environment,” as the mother testified on defendant’s behalf
at trial.

     Considering the brutal and senseless nature of defendant’s
killing of the victim, we reject defendant’s challenge to the severity
of the sentence. Finally, we have reviewed defendant’s remaining
contentions and conclude that they lack merit.




Entered:   December 28, 2012                    Frances E. Cafarell
                                                Clerk of the Court
