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

1357
KA 09-02360
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAY J. BARBONI, DEFENDANT-APPELLANT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

DONALD H. DODD, DISTRICT ATTORNEY, OSWEGO (MICHAEL G. CIANFARANO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered September 4, 2009. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree and
manslaughter in the first 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 [4]
[depraved indifference murder]) and manslaughter in the first degree
(§ 125.20 [4]), defendant contends that he was denied effective
assistance of counsel during jury selection. We reject that
contention. “The alleged error[] in defense counsel’s representation
[during jury selection is a] mere disagreement[] with defense
counsel’s . . . tactics, and defendant has failed to establish ‘the
absence of strategic or other legitimate explanations’ for defense
counsel’s alleged shortcomings” (People v Martin, 79 AD3d 1793, 1793,
lv denied 16 NY3d 861, quoting People v Rivera, 71 NY2d 705, 709).

     We also reject defendant’s challenge to the legal sufficiency of
the evidence supporting the conviction of depraved indifference murder
(see generally People v Bleakley, 69 NY2d 490, 495). Contrary to the
contention of defendant, the evidence is legally sufficient to
establish that he possessed the requisite culpable mental state to
support that conviction (see People v Varmette, 70 AD3d 1167, 1169-
1171, lv denied 14 NY3d 845; People v Griffin, 48 AD3d 1233, 1234-
1235, lv denied 10 NY3d 840; People v Bowman, 48 AD3d 178, 184-185, lv
denied 10 NY3d 808; People v Maddox, 31 AD3d 970, 971-972, lv denied 7
NY3d 868; cf. People v Lewie, 17 NY3d 348, 359-360; see generally
People v Suarez, 6 NY3d 202, 210-213). Indeed, the evidence
establishes that, on the day the crimes occurred, the victim, a 15-
                                 -2-                          1357
                                                         KA 09-02360

month-old child, was happy and healthy before he was left alone with
defendant. The expert medical testimony presented by the People
demonstrates that the child sustained at least five traumatic blows to
the head, which led to brain swelling that caused his death, and that
he sustained other injuries that would have resulted in legal
blindness had he survived. The injuries at issue were caused by
trauma that occurred approximately two hours before the child’s death,
during which time he was in the sole care of defendant.

     The record further establishes that the child’s suffering yielded
an apathetic response from defendant. Around 8:00 P.M. on the night
of the child’s death, defendant telephoned his girlfriend, who was the
mother of the child, and informed her that she needed to come home
because the child was not breathing. When the mother arrived
approximately two minutes later, she ran past defendant, who was in
the kitchen of her apartment and said to the mother that “he didn’t
know what happened.” When the mother reached the child’s crib on the
second floor of the apartment, she observed that the child was blue
and not breathing. Although defendant did not seek medical assistance
for him, the child was transported to a hospital, where he was
pronounced dead at 8:20 P.M. The evidence, viewed in the light most
favorable to the People (see People v Contes, 60 NY2d 620, 621), is
also legally sufficient to support the conviction of manslaughter in
the first degree (see generally Bleakley, 69 NY2d at 495). Viewing
the evidence 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
Bleakley, 69 NY2d at 495).

     We also conclude that there is no merit to defendant’s contention
that County Court erred in refusing to suppress certain physical
evidence on the ground that it was illegally seized, inasmuch as
defendant and the attorney who represented him when he was questioned
by the police consented to the seizure of the evidence in question
(cf. People v Farrell, 42 AD3d 954). Defendant further contends that
he was denied effective assistance of counsel based on that attorney’s
consent to the seizure. “Even assuming, [arguendo, that] the right to
effective assistance of counsel attached prior to [the seizure of the
physical evidence in question] and that suppression is the appropriate
remedy where a [seizure arises from] ineffective assistance of
counsel” (People v Carncross, 14 NY3d 319, 331), we reject defendant’s
contention inasmuch as he failed to demonstrate the absence of a
strategic explanation for that attorney’s alleged shortcomings (see
People v Benevento, 91 NY2d 708, 712; see generally People v Baldi, 54
NY2d 137, 147).




Entered:   December 23, 2011                    Frances E. Cafarell
                                                Clerk of the Court
