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

9
KA 10-00664
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

BRANDON DENNIS, DEFENDANT-APPELLANT.


MARK D. FUNK, ROCHESTER, FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Sperrazza, J.), rendered May 11, 2009. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree (three
counts), robbery in the first degree (three counts), attempted robbery
in the first degree, criminal use of a firearm in the first degree,
criminal possession of a weapon in the second degree and assault in
the second degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that the sentences
imposed on counts 1 through 3 of the indictment shall run concurrently
with the sentence imposed on count 12 of the indictment and as
modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, three counts each of murder in the
second degree (Penal Law § 125.25 [1], [3] [intentional and felony
murder]) and robbery in the first degree (§ 160.15 [2] - [4]). We
reject defendant’s contention that County Court erred in giving a jury
instruction on consciousness of guilt. According to the evidence
presented by the People at trial, defendant became a suspect in the
murder approximately one month after it occurred, and the police
attempted to locate him at the address listed on his driver’s license,
as well as at the addresses of his former and current girlfriend. The
police also informed defendant’s family members that they were looking
for him. Defendant was arrested almost six months later, when the
police received information concerning his whereabouts. Defendant was
driving his current girlfriend’s vehicle and rammed it into a police
vehicle before surrendering. We conclude that the People thereby
presented evidence warranting the instruction on consciousness of
guilt (see People v Solimini, 69 AD3d 657, lv denied 14 NY3d 893;
People v Young, 51 AD3d 1055, 1056-1057, lv denied 11 NY3d 796) and,
contrary to defendant’s contention, the People were not required to
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                                                         KA 10-00664

prove that defendant was aware that the police were searching for him.

     Defendant did not preserve for our review his further contention
that the admission of his codefendant’s statement violated the
Confrontation Clause (see People v Pearson, 82 AD3d 475, lv denied 17
NY3d 809). In any event, that contention is without merit. The
codefendant’s statement did not implicate defendant in any wrongdoing
and thus did not deprive defendant of his US Constitution Sixth
Amendment right to confront witnesses against him (see People v
Mack, 89 AD3d 864, 865-866; People v Lewis, 83 AD3d 1206, 1208-1209,
lv denied 17 NY3d 797). We reject defendant’s contention that the
court erred in allowing a police investigator to testify for the
People that he saw defendant and the codefendant together earlier on
the day of the murder. Inasmuch as the court prohibited the police
investigator from testifying that he purchased drugs from the
codefendant during that encounter, we reject defendant’s contention
that the testimony constituted evidence of a prior bad act of
defendant. Even assuming, arguendo, that the jury would infer that
defendant had committed a prior bad act based on the investigator’s
testimony that he had seen defendant and the codefendant together, we
conclude that the court did not err in allowing that testimony. The
police investigator’s testimony served as background information and
completed the narrative of the events (see People v Lesson, 48 AD3d
1294, 1296, affd 12 NY3d 823; see generally People v Resek, 3 NY3d
385, 390), i.e., it informed the jury that defendant and the
codefendant were together hours before the murder occurred and
explained how the police identified defendant as a suspect in the
case. Defendant further contends that the court erred in allowing a
police lieutenant to testify that two police departments assembled
photo arrays with defendant’s photograph, thus allegedly giving rise
to the inference that defendant committed prior bad acts by virtue of
his having been arrested on two prior occasions. Defendant’s
contention is not preserved for our review (see People v Woods, 72
AD3d 1563, 1564, lv denied 15 NY3d 811), and we decline to exercise
our power to review that contention as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]). We note, however, that
testimony regarding the pretrial identification of defendant in a
photo array was first elicited by defense counsel during his cross-
examination of a prosecution witness.

     Defendant also failed to preserve for our review his contention
that the court erred in failing to discharge two sworn jurors (see
People v Sanderson, 68 AD3d 1716, 1717, lv denied 14 NY3d 844). In
any event, the court did not err in allowing the jurors to remain on
the jury. The jurors were not “grossly unqualified to serve in the
case” (CPL 270.35 [1]), inasmuch as they did not “ ‘possess[ ] a state
of mind which would prevent the rendering of an impartial verdict’ ”
(People v Buford, 69 NY2d 290, 298; see People v Clark, 28 AD3d 1190).
Although defendant failed to preserve for our review his contention
that two instances of alleged prosecutorial misconduct deprived him of
a fair trial (see People v Heide, 84 NY2d 943, 944), we conclude in
any event that the prosecutor did not in fact engage in any
misconduct. We reject defendant’s further contention that he was
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                                                         KA 10-00664

denied the right to effective assistance of counsel based on the
failure of defense counsel, inter alia, to object to certain testimony
and the admission of the autopsy photographs in evidence. Rather,
viewing defense counsel’s representation as a whole, we conclude that
defendant received effective assistance of counsel (see generally
People v Baldi, 54 NY2d 137, 147). In addition, 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 People v
Bleakley, 69 NY2d 490, 495).

     We agree with defendant, however, that the sentence is illegal in
part insofar as the sentences for the first three counts of the
indictment, charging robbery in the first degree, must run
concurrently with rather than consecutively to count 12 of the
indictment, charging felony murder. We therefore modify the judgment
accordingly. As we held on the codefendant’s appeal, “the robbery was
the underlying felony for that count of felony murder and thus
constituted a material element of that offense” (People v Osborne, 88
AD3d 1284, 1286). We reject defendant’s further contentions that the
sentence as modified is illegal or is unduly harsh or severe.

     Finally, we note that the certificate of conviction does not
reflect that defendant was convicted of murder in the second degree
under count 13 of the indictment, and it fails to recite that the
sentences imposed on the first three counts of the indictment shall
run concurrently with each other but consecutively to the sentences
imposed on counts 11 and 13 of the indictment. The certificate of
conviction must therefore be amended accordingly (see e.g. People v
Carrasquillo, 85 AD3d 1618, 1620, lv denied 17 NY3d 814).




Entered:   January 31, 2012                    Frances E. Cafarell
                                               Clerk of the Court
