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

53
KA 11-02525
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT BAKERX, DEFENDANT-APPELLANT.


THOMAS THEOPHILOS, BUFFALO, FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered June 21, 2011. The judgment
convicted defendant, upon a nonjury verdict, of manslaughter in the
first degree and criminal possession of a weapon in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
following a joint nonjury trial with one codefendant (People v Heary,
104 AD3d 1208, lv denied 21 NY3d 943, reconsideration denied 21 NY3d
1016), of manslaughter in the first degree (Penal Law § 125.20 [1])
and criminal possession of a weapon in the second degree ([CPW 2d] §
265.03 [3]). Defendant contends that the evidence is legally
insufficient to support his conviction of manslaughter because the
People failed to meet their burden of disproving his justification
defense beyond a reasonable doubt (see generally § 25.00 [1]; People v
Umali, 10 NY3d 417, 425, rearg denied 11 NY3d 744, cert denied 556 US
1110). He further contends that the evidence is legally insufficient
to support the conviction of CPW 2d because the People failed to
establish that he did not possess the loaded weapon in his home or
place of business (§ 265.03 [3]) or that he intended to use the weapon
against another. Those “contention[s are] not preserved for our
review inasmuch as defendant ‘did not move for a trial order of
dismissal on th[ose] ground[s]’ ” (Heary, 104 AD3d at 1209; see
generally People v Gray, 86 NY2d 10, 19). We reject defendant’s
further contention that he was denied effective assistance of counsel
based on defense counsel’s failure to move for a trial order of
dismissal on those grounds. “It is well settled that ‘[a] defendant
is not denied effective assistance of trial counsel merely because
counsel does not make a motion or argument that has little or no
chance of success’ . . . Here, there was no chance that such a motion
would have succeeded” (Heary, 104 AD3d at 1209, quoting People v
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                                                         KA 11-02525

Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702).

     Defendant further contends that the evidence is legally
insufficient to support the conviction of manslaughter because the
People failed to establish the element of intent to cause serious
physical injury. Although defendant preserved that contention for our
review, we conclude that it lacks merit. Such “intent may be inferred
from [defendant’s] conduct, the surrounding circumstances, and the
medical evidence,” which established that defendant shot the victim
and that the bullet entered the victim through the back, piercing his
right lung and aorta (People v Wise, 46 AD3d 1397, 1399, lv denied 10
NY3d 872 [internal quotation marks omitted]; see generally People v
Bleakley, 69 NY2d 490, 495).

     Although defendant further contends that Supreme Court erred in
failing to consider the lesser included offense of manslaughter in the
second degree (Penal Law § 125.15 [1]), we reject that contention.
There is no “reasonable view of the evidence [that] would support a
finding that the defendant committed such lesser offense but did not
commit the greater” (CPL 300.50 [1]; see generally People v Glover, 57
NY2d 61, 63). We further conclude, upon viewing the evidence in light
of the elements of the crimes in this nonjury trial (see People v
Danielson, 9 NY3d 342, 349), that the verdict is not against the
weight of the evidence (see Bleakley, 69 NY2d at 495).

     Inasmuch as defendant did not join in the application of the
codefendant to introduce evidence of the victim’s prior bad acts, he
did not preserve for our review his contention that the court erred in
refusing to admit such evidence (see People v Thompson, 300 AD2d 1032,
1033, lv denied 99 NY2d 620; People v Cook, 286 AD2d 917, 917, lv
denied 97 NY2d 680; see generally People v Buckley, 75 NY2d 843, 846).
In any event, that contention lacks merit (see Matter of Robert S., 52
NY2d 1046, 1048) and, therefore, defense counsel was not ineffective
in failing to make an argument that had little or no chance of success
(see Heary, 104 AD3d at 1209; see generally Stultz, 2 NY3d at 287).

     In his pretrial omnibus motion and supplemental motions,
defendant sought suppression of his statements, physical evidence and
DNA evidence contending, inter alia, that he was arrested without
probable cause. We conclude that the court properly denied the
Dunaway branch of defendant’s motions without a hearing. “Given ‘(1)
the face of the pleadings, (2) assessed in conjunction with the
context of the motion[s], and (3) defendant’s access to information,’
defendant’s allegations in support of his motion[s] were too
conclusory to warrant a hearing” (People v Lopez, 5 NY3d 753, 754,
quoting People v Mendoza, 82 NY2d 415, 426; see People v Arokium, 33
AD3d 458, 459, lv denied 8 NY3d 878; People v McDowell, 30 AD3d 160,
160, lv denied 7 NY3d 850). In any event defendant’s “written
postarrest statement . . . on its face shows probable cause for
defendant’s arrest, and defendant failed to controvert it in his
motion papers” (Lopez, 5 NY3d at 754).

     Defendant contends for the first time on appeal that the
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                                                         KA 11-02525

Miranda warnings given to him were defective. That contention is not
preserved for our review (see People v Tutt, 38 NY2d 1011, 1012-1013;
People v Louisias, 29 AD3d 1017, 1018-1019, lv denied 7 NY3d 814) and,
in any event, it lacks merit. Although the detective issuing the
warnings did not inform defendant that he would be entitled to “free”
counsel if he could not afford counsel, “the Miranda prophylaxis does
not require a ‘ritualistic incantation of warnings in any particular
language or form’ ” (People v Snider, 258 AD2d 929, 930, lv denied 93
NY2d 979). “The inquiry is simply whether the warnings reasonably
‘conve[y] to [a suspect] his rights as required by Miranda’ ”
(Duckworth v Eagan, 492 US 195, 203; see Louisias, 29 AD3d at 1019).
Here, defendant was informed that he would receive appointed counsel
if he could not afford counsel and, therefore, the warnings given to
defendant reasonably apprised him of his rights.

     Defendant also contends for the first time on appeal that he was
denied his right to counsel because, although he was not in custody on
a prior charge, he was represented by counsel on that charge and it
was related to the charges for which he was in custody (see People v
Vella, 21 NY2d 249, 251). “[T]he rule ‘authorizing review of
unpreserved constitutional right-to-counsel claims’ has been applied
‘only when the constitutional violation was established on the face of
the record’ ” (People v McClean, 15 NY3d 117, 121, quoting People v
Ramos, 99 NY2d 27, 37). Here, because “the record does not make
clear, irrefutably, that a right to counsel violation has occurred,
the claimed violation can be reviewed only on a post[]trial motion
under CPL 440.10, not on direct appeal” (id.). Defendant’s further
contention that defense counsel was ineffective in failing to pursue
that theory of suppression also involves matters outside the record on
appeal and thus is properly raised by way of a CPL 440.10 motion (see
People v Rivera, 71 NY2d 705, 709).

     Defendant contends that photo arrays shown to two witnesses were
unduly suggestive because of the differences in the attire of the
persons depicted and in the composition of the photographs. We reject
that contention inasmuch as those differences were “not sufficient to
create a substantial likelihood that the defendant would be singled
out for identification” (People v Chipp, 75 NY2d 327, 336, cert
denied 498 US 833). For the first time on appeal, defendant also
contends that the photo arrays were unduly suggestive because he was
the only person with a mohawk hairstyle in both arrays. That
contention was not raised in the hearing court and, therefore, is not
preserved for our review (see People v Johnson, 306 AD2d 214, 215, lv
denied 100 NY2d 621; People v Berry, 201 AD2d 489, 489-490, lv denied
83 NY2d 869). 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]).

     Finally, we reject defendant’s challenges to the severity of the
sentence and the court’s remarks at sentencing.

Entered:   February 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
