                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 5, 2015                   105989
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

IVAN RAMOS, Also Known as
   BIG MAN,
                    Appellant.
________________________________


Calendar Date:   September 14, 2015

Before:   Egan Jr., J.P., Rose, Devine and Clark, JJ.

                             __________


     Joseph Nalli, Fort Plain, for appellant.

      James E. Conboy, District Attorney, Fonda (Sarah J.
Leszczynski of counsel), for respondent.

                             __________


Clark, J.

      Appeal from a judgment of the County Court of Montgomery
County (Catena, J.), rendered March 20, 2013, upon a verdict
convicting defendant of the crimes of murder in the first degree
(two counts) and criminal possession of a weapon in the third
degree.

       Following the brutal killing of William McDermott and
Cheryl Goss Faboskay at McDermott's apartment in Montgomery
County, defendant was indicted on two counts each for the crimes
of murder in the first degree and criminal possession of a weapon
in the third degree. A jury thereafter found defendant guilty of
both counts of murder and one count of criminal possession of a
weapon and he was sentenced, as a second felony offender, to an
                              -2-                105989

aggregate term of life in prison without the possibility of
parole. Defendant now appeals and we affirm.

      As an initial matter, defendant's claim that his
convictions were not supported by legally sufficient evidence is
unpreserved, as his motion to dismiss at the close of the
People's case was not based on the grounds that he has now raised
on appeal (see People v Hawkins, 11 NY3d 484, 492 [2008]; People
v Hook, 80 AD3d 881, 882 [2011], lv denied 17 NY3d 806 [2011]).
In any event, because defendant also contends that his
convictions are against the weight of the evidence, we remain
obligated to nonetheless conduct "an evaluation of whether all
elements of the charged crime[s] were proven beyond a reasonable
doubt at trial" (People v Robinson, 123 AD3d 1224, 1225 [2014],
lvs denied 25 NY3d 992, 993 [2015] [internal quotation marks and
citations omitted]; see People v Danielson, 9 NY3d 342, 348-349
[2007]). In determining whether the verdict is against the
weight of the evidence, we undertake to weigh the probative force
of conflicting testimony and the strength of conflicting
inferences (see People v Bleakley, 69 NY2d 490, 495 [1987];
People v Salce, 124 AD3d 923, 925-926 [2015], lv denied 25 NY3d
1207 [2015]).

      For defendant to be found guilty of criminal possession of
a weapon in the third degree, the People were required to prove
that defendant possessed a "dangerous or deadly instrument or
weapon with intent to use the same unlawfully against another"
(Penal Law § 265.01 [2]) and that he had previously been
convicted of a crime (see Penal Law § 265.02 [1]). Next, as to
the charges of murder in the first degree, the People were
required to prove that, "[w]ith intent to cause the death of
another person, [defendant] cause[d] the death of such person or
of a third person . . . and[,] as part of the same criminal
transaction, . . . defendant, with intent to cause serious
physical injury to or the death of an additional person or
persons, cause[d] the death of an additional person or persons;
provided, however, the victim is not a participant in the
criminal transaction" (Penal Law § 125.27 [1] [a] [viii]).
"Criminal transaction," in turn, is defined as "conduct which
establishes at least one offense, and which is comprised of two
or more or a group of acts either (a) so closely related and
                              -3-                105989

connected in point of time and circumstance of commission as to
constitute a single criminal incident, or (b) so closely related
in criminal purpose or objective as to constitute elements or
integral parts of a single criminal venture" (CPL 40.10 [2]; see
People v Duggins, 3 NY3d 522, 527 [2004]).

      Here, several individuals – including Miguel Quinones,
Edward Fisher, Craig McCormick and Deborah Baker – testified that
they saw defendant at McDermott's apartment on the evening of
March 1, 2012. Quinones, Fisher and McCormick each testified
that defendant did not have any cuts or scratches on his face at
that time, and Baker testified that defendant was wearing a
camouflage coat, T-shirt and gray sweatpants. Explaining that he
was expecting a visit from a woman, McDermott asked Fisher and
defendant to leave his apartment at approximately 2:00 a.m. on
March 2, 2012.

      Shortly thereafter, at approximately 3:00 a.m., defendant
arrived at the home of Terry Dallas Reedy, where he asked to use
the telephone to call McDermott. Reedy allowed him to do so and,
after the phone call ended, defendant left Reedy's home. About
30 minutes later, when he was already in bed, Reedy heard
McCormick – who was also at Reedy's house – open the door. When
Reedy asked McCormick where he was going, McCormick stated that
he was going home. Reedy testified that he then fell asleep, but
was later awoken by someone banging on his door. Upon answering
the door, Reedy found McCormick, who he described as white as a
ghost, screaming "they're dead" repeatedly.

      McCormick testified that, after leaving Reedy's home, he
went back to McDermott's apartment and, upon arriving, noticed a
lot of blood in the hallway leading to McDermott's front door.
McCormick then tried to gain access to the apartment and, finding
the door locked, went around to the back door where he noticed
one set of footprints in the snow leading toward the street.
McCormick averred that the back door was open, so he entered the
apartment and saw large amounts of blood and McDermott and a
woman laying on the floor. McCormick testified that he then
locked the back door and used a pot holder to open the front door
in an effort to avoid touching the blood. He then went through
the alleyway next to the apartment to see if anyone was there
                              -4-                105989

and, finding no one, proceeded back to Reedy's house, dropping
the pot holder in the street on his way.

      Richard Haver, who lived in the apartment directly across
the hall from McDermott's apartment, testified that he stopped
home from work at approximately 2:00 a.m. and the building was
quiet at that time. Haver stated that he went back to work a
short time later and that, when he returned home at the end of
his shift at approximately 5:25 a.m., he saw blood on the walls
and floor of the hallway and heard the television playing from
inside McDermott's apartment. Haver then called the police.

      Elvira Ramos, defendant's sister, testified that she saw
defendant on March 1, 2012 and that he was wearing a camouflage
jacket when he arrived at her home at around 5:00 a.m. on the
morning of March 2, 2012. Mario Rios, who was also present at
Ramos' home on the morning in question, testified that he heard
defendant using the bathroom and that, after defendant left, he
saw water and blood in the bathroom, which he cleaned up. Both
Ramos and defendant's wife testified that defendant had scratches
on his face, but that they were a week old and that they were
caused by his wife hitting him with a lamp.

      Israel Toro, an investigator with the State Police,
testified that he interviewed defendant and that defendant stated
that he left his residence at approximately 5:00 p.m. on March 1,
2012 and arrived at McDermott's apartment around 9:00 p.m.
Defendant told Toro that he left McDermott's apartment at
approximately 2:30 a.m. and went to Reedy's house, where he
called McDermott. Toro testified that defendant stated that he
then left Reedy's house and went home, stopping to talk with two
people on the way. Toro stated that defendant had indicated that
he was wearing a black polo, boots, a jacket and blue jeans and
that he had previously sold his camouflage jacket. Defendant
later modified his story, telling Toro that he had only sold the
insert to the camouflage jacket after leaving McDermott's
apartment on the morning of March 2, 2012. Toro stated that he
asked defendant if he knew why he was being interviewed and
defendant replied that he did not. However, when Toro told
defendant that it was in relation to a homicide investigation,
Toro stated that defendant "became very emotional, teared up, and
                              -5-                105989

started talking about [McDermott]," despite the fact that Toro
had not informed defendant of the victims' names. Defendant also
told Toro that he kept personal items at McDermott's apartment,
including several knives. John Thomas, a detective with the
Amsterdam Police Department, explained that surveillance videos
of the area where these events took place generally corroborated
McCormick's testimony.

      Michael Sikirica, a forensic pathologist who performed
autopsies on the victims, testified that both victims were
stabbed several times and that each had several defensive wounds.
Sikirica opined that McDermott's death was caused by asphyxia and
hemorrhaging and that Faboskay's death was caused by "multiple
stab and incise wounds with perforations of the lungs and
transection of the left subclavian vein." A forensic scientist
testified that a sneaker recovered from defendant's home tested
positive for blood. However, another forensic scientist
testified that the blood did not contain the DNA of either of the
victims. Defendant's DNA was found on several items that were in
McDermott's apartment. Additionally, two forensic technicians
with the State Police testified that defendant's bloody palm
print was found in McDermott's apartment and that a shoe print
matching the shoe recovered from defendant's home was found on
Faboskay's coat. Finally, evidence was submitted demonstrating
that defendant had previously been convicted of a crime.

      In our view, the evidence supports the jury's determination
that defendant is guilty of both counts of murder in the first
degree, as well as criminal possession of a weapon in the third
degree. According deference to the jury's apparent acceptance of
McCormick's testimony and the forensic evidence, we cannot agree
that the verdict was against the weight of the evidence.

      Turning to defendant's challenge to County Court's Sandoval
ruling, we note that the court permitted the People to inquire
regarding only five of defendant's prior convictions and further
limited the scope of inquiry by permitting inquiry into only the
date and the number of felony convictions with respect to his
2012 burglary convictions. Inasmuch as the commission of crimes
involving dishonesty or untrustworthiness is particularly
probative of credibility and the court properly weighed the
                              -6-                105989

probative value of the prior convictions against the risk of
prejudice to defendant, we cannot say that the Sandoval
compromise constituted an abuse of discretion (see People v
Williams, 56 NY2d 236, 237-239 [1982]; People v Sandoval, 34 NY2d
371, 373-374, 376-377 [1974]; People v Fomby, 101 AD3d 1355, 1357
[2012]; People v Lemke, 58 AD3d 1078, 1078-1079 [2009]).

      Nor can we agree that defendant's sentence is harsh or
excessive. A sentence that falls within the permissible
statutory range will not be disturbed unless it can be shown
"'that the sentencing court abused its discretion or
extraordinary circumstances exist warranting a modification'"
(People v Lancaster, 121 AD3d 1301, 1304 [2014], lv denied 24
NY3d 1121 [2015], quoting People v Cruz, 53 AD3d 986, 986
[2008]). Here, defendant was sentenced to an aggregate term of
life in prison without the possibility of parole, which sentence
he concedes is within permissible statutory range (see Penal Law
§§ 70.00 [5]; 125.27, 265.02). The record before us demonstrates
that defendant acted with a shocking and profound level of
violence when he took the lives of McDermott and Faboskay.
Sikirica testified that it likely took defendant 15 to 30 minutes
to inflict the injuries that ultimately resulted in the victims'
deaths. Further, crime scene evidence and a recording of a 911
call1 revealed that, when McDermott managed to escape the
apartment, defendant hunted him down and dragged him back inside
to his death. In light of this extreme violence and defendant's
lack of remorse, defendant's sentence does not constitute an
abuse of County Court's discretion and there are no extraordinary
circumstances warranting a modification thereof (see People v
Shoemaker, 119 AD3d 1073, 1077 [2014], lv denied 25 NY3d 992
[2015]; People v Callicut, 101 AD3d 1256, 1264-1265 [2012], lvs
denied 20 NY3d 1096, 1097 [2013]; People v Muller, 72 AD3d 1329,
1336 [2010], lv denied 15 NY3d 776 [2010]).

      Finally, defendant contends that he was denied the
effective assistance of counsel – a claim that is premised, in


    1
        McDermott was able to call 911 from his cellular
telephone but, due to his injuries, was unable to speak to the
operator.
                              -7-                  105989

large measure, upon counsel's failure to request a circumstantial
evidence charge and to discuss in his closing statement
unidentified DNA found at the crime scene. To establish a claim
of ineffective assistance of counsel, defendant "is required to
demonstrate that he was not provided meaningful representation
and that there is an absence of strategic or other legitimate
explanations for counsel's allegedly deficient conduct" (People v
McRobbie, 97 AD3d 970, 972 [2012], lv denied 20 NY3d 934 [2012]
[internal quotation marks and citations omitted]; see People v
Caban, 5 NY3d 143, 152 [2005]). Based upon our review of the
record as a whole, we are satisfied that defendant received
meaningful representation. Among other things, trial counsel
made appropriate pretrial motions, cross-examined the People's
witnesses, made appropriate objections and gave cogent opening
and closing statements. Inasmuch as defendant failed to
demonstrate a lack of strategic or other legitimate explanations
for counsel's alleged insufficiencies, we cannot agree that he
was deprived of the effective assistance of counsel.

     Egan Jr., J.P., Rose and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
