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

81
KA 10-00153
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BYRON 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 (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered January 14, 2010. The judgment convicted
defendant, upon a nonjury verdict, of murder in the first degree (two
counts), murder in the second degree (four counts), burglary in the
first degree, arson in the third degree and criminal possession of a
weapon in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing those parts convicting
defendant of murder in the second degree under counts three and four
of the indictment and dismissing those counts and as modified the
judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of, inter alia, two counts of murder in the
first degree (Penal Law § 125.27 [1] [a] [viii]; [b]) and four counts
of murder in the second degree (§ 125.25 [1], [3]). The evidence
established that defendant entered the home of his ex-girlfriend and
waited for several hours until she returned home with her current
boyfriend, at which time he shot them both and set her house on fire.
Viewing the evidence in light of the elements of the crimes in this
bench trial (see People v Danielson, 9 NY3d 342, 349), we conclude
that the verdict is not against the weight of the evidence (see
generally People v Bleakley, 69 NY2d 490, 495). We reject the
contention of defendant that he was denied effective assistance of
counsel based on defense counsel’s failure to object to certain
hearsay testimony, his elicitation of hearsay testimony on cross-
examination, or his failure to call a certain witness. Rather,
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).
                                 -2-                            81
                                                         KA 10-00153

      We agree with defendant that County Court erred in allowing a
fire marshall to testify regarding six categories of motivation for
setting a fire, including revenge and crime concealment. The People
failed to demonstrate that those categories are “generally accepted in
the scientific community . . . or that the subject is beyond the
ordinary ken of the [trier of fact]” (People v Avellanet, 242 AD2d
865, 865, lv denied 91 NY2d 868). We conclude, however, that the
error is harmless inasmuch as the evidence of defendant’s guilt is
overwhelming and there is no significant probability that, absent the
error, the court would have acquitted defendant (see id.; see
generally People v Crimmins, 36 NY2d 230, 241-242). Defendant’s
further contention that the fire marshall improperly testified that he
eliminated all causes of the fire except the “human element” is not
preserved for our review (see CPL 470.05 [2]) and, in any event, that
contention is without merit (see generally People v Rivers, 18 NY3d
222).

     As the People correctly concede, however, those parts of the
judgment convicting defendant of murder in the second degree under
counts three and four of the indictment must be reversed and those
counts dismissed because they are inclusory concurrent counts of the
two murder in the first degree counts (see CPL 300.40 [3] [b]; People
v Pierre, 37 AD3d 1172, lv denied 8 NY3d 989; see generally People v
Miller, 6 NY3d 295, 300-303). We therefore modify the judgment
accordingly. In addition, we note that the certificate of conviction
incorrectly recites that defendant was convicted of criminal
possession of a weapon in the second degree under Penal Law § 265.03
(1), and it must therefore be amended to reflect that he was convicted
of that crime under Penal Law § 265.03 (3) (see People v Saxton, 32
AD3d 1286). We have considered defendant’s remaining contentions and
conclude that they are without merit.




Entered:   February 10, 2012                    Frances E. Cafarell
                                                Clerk of the Court
