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

48
KA 14-00110
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DYLAN SCHUMAKER, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DYLAN SCHUMAKER, DEFENDANT-APPELLANT PRO SE.

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


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered January 10, 2014. 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 modified as a matter of discretion in the interest of
justice by reducing the sentence imposed to an indeterminate term of
incarceration of 18 years to life, and as modified the judgment is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of murder in the second degree (Penal Law § 125.25
[1]), arising from the death of his girlfriend’s 23-month-old son.
Defendant contends, inter alia, that the evidence is not legally
sufficient to support the conviction and that the verdict is against
the weight of the evidence. Although he concedes that his actions
caused the victim’s death, defendant challenges the sufficiency and
weight of the evidence with respect to whether he intentionally caused
the victim’s death. We reject those challenges.

     It is well settled that “[t]he standard for reviewing the legal
sufficiency of evidence in a criminal case is whether ‘after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt’ ” (People v Contes, 60 NY2d 620, 621,
quoting Jackson v Virginia, 443 US 307, 319, reh denied 444 US 890).
Consequently, we must “determine whether there is any valid line of
reasoning and permissible inferences which could lead a rational
person to the conclusion reached by the jury on the basis of the
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                                                            KA 14-00110

evidence at trial” (People v Bleakley, 69 NY2d 490, 495).

     Here, the testimony of the Medical Examiner established that the
victim sustained ruptured blood vessels in his left ear and near his
right eye, hemorrhages in his retina and perioptic nerve, and subdural
and subarachnoid hemorrhaging. The Medical Examiner testified that
the victim also had numerous contusions and abrasions on multiple
areas of his torso, buttocks, scalp, face and neck. The Medical
Examiner opined that the cause of the victim’s death was “diffuse
axonal injury,” which resulted from shearing forces within the child’s
brain caused by his head whipping violently back and forth, and that
such a result is consistent with the blows that defendant admitted
inflicting upon the child. The Medical Examiner testified that the
child’s injuries were not consistent with a slip and fall as defendant
testified occurred, but instead were the result of “multiple impacts.”
Other evidence, including text messages that defendant sent and his
trial testimony, established that the child was initially injured
before 5:00 p.m., and that defendant inflicted further injuries upon
him over a period of several hours during the evening. Defendant
admitted hitting the victim several times, including backhanded smacks
to his face, and slamming his head on the ground while changing a
diaper, all of which culminated in defendant placing the victim on a
bed with a pillow over him and repeatedly punching him in the head.
The Medical Examiner testified that the “diffuse axonal injury” caused
the victim’s death, and that the victim had “no prolonged survival
[after he sustained that injury, but rather he] died soon thereafter,
shortly thereafter.”

      The evidence also established that defendant frequently stopped
attacking the victim while he sent an ongoing series of text messages.
At approximately 5:00 p.m., he told the victim’s mother that the
victim had fallen, but for the next several hours he texted with her
on that and other topics, flirted with a different young woman, and
attempted to sell synthetic marihuana to a third person. Thus, the
evidence is sufficient to establish that defendant spent the evening
intermittently attacking the 23-month-old child while engaging in
commercial and social activities, and then placed the victim on a bed
and punched him repeatedly in the head through a pillow. “A jury is
entitled to infer that a defendant intended the natural and probable
consequences of his acts” (People v Bueno, 18 NY3d 160, 169; see
People v Hayes, 163 AD2d 165, 166, affd 78 NY2d 876; People v Watson,
269 AD2d 755, 756, lv denied 95 NY2d 806). We conclude that the
evidence is legally sufficient to establish that defendant intended to
cause the death of the victim (see generally Bleakley, 69 NY2d at
495).

     Furthermore, it is also well settled that, “in conducting its
weight of the evidence review, a court must consider the elements of
the crime, for even if the prosecution’s witnesses were credible their
testimony must prove the elements of the crime beyond a reasonable
doubt” (People v Danielson, 9 NY3d 342, 349). Here, viewing the
evidence in light of the elements of the crime of murder as charged to
the jury (see id.), we further conclude that the verdict is not
                                 -3-                            48
                                                         KA 14-00110

against the weight of the evidence (see generally Bleakley, 69 NY2d at
495). We note that, “[a]lthough defendant testified that he did not
intend to kill [the] victim, the [jury] was free to reject that
self-serving testimony” (People v Simcoe, 75 AD3d 1107, 1109, lv
denied 15 NY3d 924).

     Defendant further contends that Supreme Court erred in denying
his Batson objection to the prosecutor’s use of peremptory challenges
to exclude two African-American prospective jurors. Defendant failed
to preserve for our review that part of his contention concerning the
court’s procedure for determining his Batson objection (see People v
Collins, 63 AD3d 1609, 1610, lv denied 13 NY3d 795; People v Parker,
304 AD2d 146, 156, lv denied 100 NY2d 585). We decline to exercise
our power to review that part of defendant’s contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).

     We reject those parts of defendant’s Batson contention that are
preserved for our review. We conclude that the court properly
determined that the prosecutor’s explanations for exercising
peremptory challenges with respect to the two prospective jurors were
race-neutral and not pretextual when it rejected defendant’s Batson
objections concerning those two prospective jurors (see generally
People v Smocum, 99 NY2d 418, 422). The prosecutor challenged one of
the prospective jurors based on her memberships in religious and human
rights organizations that the prosecutor felt made her more
sympathetic to defendant (see People v Page, 105 AD3d 1380, 1381, lv
denied 23 NY3d 1023; People v Wilson, 43 AD3d 1409, 1411, lv denied 9
NY3d 994), and she challenged the other on the ground that the
prospective juror’s lack of life experiences and decision-making
responsibilities made her a less-qualified candidate for jury service
(see People v Hinds, 270 AD2d 891, 892, lv denied 95 NY2d 964).
Finally, the prosecutor established that she struck other prospective
jurors who were not members of a suspect class for those same reasons,
and the court therefore properly concluded that the prosecutor’s
explanations were not pretextual (see People v Simmons, 79 NY2d 1013,
1015; cf. People v Mallory, 121 AD3d 1566, 1568; see generally People
v Lawrence, 23 AD3d 1039, 1039, lv denied 6 NY3d 835).

     We reject defendant’s further contention that he was denied
effective assistance of counsel. Defendant’s contention that he was
deprived of effective assistance of counsel by his attorney’s failure
to pursue a defense of extreme emotional disturbance is without merit.
That defense requires that a defendant establish that he “suffered
from a mental infirmity not rising to the level of insanity at the
time of the homicide, typically manifested by a loss of self-control”
(People v Roche, 98 NY2d 70, 75; see People v Wall, 48 AD3d 1107,
1107, lv denied 11 NY3d 742). Here, “[w]e conclude that proof of the
objective element [of the defense] is lacking . . . , inasmuch as
defendant’s behavior immediately before and after the killing was
inconsistent with the loss of control associated with the affirmative
defense” (People v Mohamud, 115 AD3d 1227, 1228, lv denied 23 NY3d 965
[internal quotation marks omitted]; see People v Jarvis, 60 AD3d 1478,
1479, lv denied 12 NY3d 916). It is well settled that “[t]here can be
                                 -4-                            48
                                                         KA 14-00110

no denial of effective assistance of trial counsel arising from
counsel’s failure to ‘make a motion or argument that has little or no
chance of success’ ” (People v Caban, 5 NY3d 143, 152, quoting People
v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702). Furthermore, in
order “[t]o 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; see People v
Benevento, 91 NY2d 708, 712), and defendant failed to make such a
showing here.

     We likewise reject defendant’s contention that he was denied
effective assistance of counsel based on his attorney’s failure to
seek a Dunaway hearing “ ‘where, as here, such [a request] was
potentially futile’ ” (People v Smith, 128 AD3d 1434, 1434-1435, lv
denied 26 NY3d 1011). Similarly, there is no evidence in the record
that the Sheriff’s detectives who questioned defendant used any ploy
that might constitute a “highly coercive deception[]” that would
justify suppression of his statements (People v Thomas, 22 NY3d 629,
642; see People v Moore, 132 AD3d 496, 496-497; see generally People v
Knapp, 124 AD3d 36, 41-42), and thus defendant was not denied
effective assistance of counsel by his trial attorney’s failure to
move to suppress his statements on that ground. Defendant’s
contention in his pro se supplemental brief that trial counsel was
ineffective in failing to challenge prosecutorial misconduct occurring
in the grand jury is baseless, inasmuch as there is no evidence that
trial counsel had access to the grand jury minutes. We have
considered defendant’s remaining contentions in his main and pro se
supplemental briefs with respect to the alleged ineffective assistance
of counsel and, 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).

     Defendant failed to preserve for our review his contention that
the investigators who questioned him should have advised him of his
Miranda rights a second time, before he began to write out his
statement (see People v Rodriguez, 70 AD3d 729, 730, lv denied 14 NY3d
892; People v Kemp, 266 AD2d 887, 887, lv denied 94 NY2d 921). In any
event, that contention lacks merit. Where “ ‘a person in police
custody has been issued Miranda warnings and voluntarily and
intelligently waives those rights, it is not necessary to repeat the
warnings prior to subsequent questioning within a reasonable time
thereafter, [where, as here,] the custody [was] continuous’ ” (People
v Johnson, 20 AD3d 939, 939, lv denied 5 NY3d 853; see People v
Peterkin, 89 AD3d 1455, 1455-1456, lv denied 18 NY3d 885).

     Defendant waived his present contention that the court erred,
following a Ventimiglia hearing, in allowing the prosecutor to present
evidence of a prior bad act, i.e., an altercation he had with the
victim’s mother the day before this incident, inasmuch as he consented
to the admission of that evidence (see People v McCain, 307 AD2d 764,
765, lv denied 100 NY2d 622; see generally People v Carr, 267 AD2d
                                 -5-                            48
                                                         KA 14-00110

1062, 1063, lv denied 95 NY2d 833).

     We agree with defendant, however, that the sentence imposed is
unduly harsh and severe in light of defendant’s youth and lack of
parental guidance, his lack of prior criminal convictions, and his
mental health issues. Thus, we modify the judgment by reducing the
sentence, as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [b]), to an indeterminate term of incarceration of 18
years to life.




Entered:   February 11, 2016                    Frances E. Cafarell
                                                Clerk of the Court
