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

386
KA 08-00886
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LAZARUS CLYBURN-DAWSON, DEFENDANT-APPELLANT.


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Alex R. Renzi,
J.), rendered February 27, 2008. 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: Defendant appeals from a judgment convicting him
upon a jury verdict of murder in the second degree (Penal Law § 125.25
[3] [felony murder]). We reject defendant’s contention that the
evidence is legally insufficient to support the conviction (see
generally People v Bleakley, 69 NY2d 490, 495). Viewing the evidence
in the light most favorable to the People, as we must in the context
of a legal sufficiency analysis (see People v Contes, 60 NY2d 620,
621), we conclude that the evidence is legally sufficient to establish
that defendant forcibly stole marihuana from the victim and that,
during the course and commission of that robbery, he shot the victim
to death. We reject defendant’s further contention that County Court
erred in refusing to suppress his statements to the police (see People
v Gutierrez, 96 AD3d 1455, 1455, lv denied 19 NY3d 997). Even
assuming, arguendo, that the police misled defendant by the
representation that one of the investigators had been “trained in the
mental health field,” we conclude that such deception did not “create
a substantial risk that the defendant might falsely incriminate
himself” (People v Alexander, 51 AD3d 1380, 1382, lv denied 11 NY3d
733 [internal quotation marks omitted]), and it cannot be said that
the alleged deception was “ ‘so fundamentally unfair as to deny
[defendant] due process’ ” (People v Brown, 39 AD3d 886, 887, lv
denied 9 NY3d 873, quoting People v Tarsia, 50 NY2d 1, 11). We
likewise conclude that the circumstances and length of defendant’s
detention and questioning, spanning a period of approximately eight
hours, did not render defendant’s statement involuntary (see People v
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McWilliams, 48 AD3d 1266, 1267, lv denied 10 NY3d 961).

     Contrary to defendant’s further contention, the court did not err
in refusing to charge the jury with respect to the voluntariness of
defendant’s statements to the police. Such a charge is required only
if defendant raises the issue of voluntariness at trial “by a proper
objection, and evidence sufficient to raise a factual dispute [is]
adduced either by direct [examination] or cross-examination” (People v
Cefaro, 23 NY2d 283, 288-289; see People v Medina, 93 AD3d 459, 460,
lv denied 19 NY3d 999). Because defendant did not submit any evidence
presenting a genuine issue of fact concerning the voluntariness of his
statements, the court was not required to instruct the jury on that
issue (see People v Canfield, 111 AD3d 1396, 1396, lv denied 22 NY3d
1087; People v Nathan, 108 AD3d 1077, 1078, lv denied 23 NY3d 966).

      Defendant failed to preserve his contention that one of the
People’s witnesses improperly referred to a written statement of an
eyewitness to the crime (see CPL 470.05 [2]). In any event, the court
properly permitted the People to elicit, during the testimony of a
police investigator, that an eyewitness to the crime made a written
statement, the contents of which were not revealed to the jury, and
that the statement was shown to defendant during interrogation. The
investigator did not testify that the out-of-court statement led him
to arrest defendant. Rather, the investigator merely conveyed the
circumstances under which defendant’s own statement was given to the
police (see People v Gonzalez, 249 AD2d 24, 24, lv denied 92 NY2d
1049). To the extent that defendant contends that defense counsel was
ineffective in eliciting testimony about the written statement, we
conclude that the record establishes that defense counsel pursued a
legitimate strategy of implicating the party that had given the
written statement as “the shooter.” Thus, defendant failed to meet
his burden of demonstrating “ ‘the absence of strategic or other
legitimate explanations’ for [defense] counsel’s alleged shortcomings”
with respect to the written statement (People v Benevento, 91 NY2d
708, 712; see People v Loret, 56 AD3d 1283, 1283, lv denied 11 NY3d
927).

     Defendant failed to preserve his contention with respect to the
admissibility of the photographs marked as People’s exhibits Nos. 37
and 39 (see CPL 470.05 [2]). Although defense counsel initially
objected to the admission of the photographs in evidence on the ground
that the People had established no evidentiary foundation for them, no
further objection was made after the People established a proper
foundation. We reject defendant’s further contention that the court
erred in admitting in evidence the photograph marked as People’s
exhibit No. 40 because it was irrelevant and without foundation, and
constituted an improper reenactment of the crime. We conclude that
the court did not abuse its discretion in admitting the photograph as
demonstrative evidence (see People v Gorham, 72 AD3d 1108, 1110, lv
denied 15 NY3d 773). The photograph clarified other relevant evidence
and corroborated the testimony of other witnesses (see People v
D’Lucca, 243 AD2d 487, 488, lv denied 91 NY2d 872). Furthermore, any
difference between the photograph and the circumstances under which
the shooting occurred went to the question of weight rather than
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                                                         KA 08-00886

admissibility (see People v Davis, 10 AD3d 583, 583, lv denied 4 NY3d
743).

     Finally, defendant’s sentence is not unduly harsh or severe.




Entered:   May 1, 2015                          Frances E. Cafarell
                                                Clerk of the Court
