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

1025
KA 14-01504
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RAYSHAWN BETHANY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BENJAMIN L. NELSON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

RAYSHAWN BETHANY, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (KATHARINE
S. LAVIN OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered July 28, 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 affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of murder in the second degree (Penal Law
§§ 20.00, 125.25 [1]). Contrary to the contention of defendant in his
main and pro se supplemental briefs, we conclude that County Court did
not err in refusing to suppress the inculpatory statements he made to
a detective who was investigating the case. With respect to the first
statement, even assuming, arguendo, that defendant was in custody at
the time he was questioned by the detective, we note that the
detective testified that he read defendant his Miranda rights from a
card that was introduced into evidence, and began discussing the
homicide only after defendant indicated that he understood his rights,
but nonetheless wished to speak with the detective (see People v
Steiniger, 142 AD3d 1320, 1320). “Although defendant testified that
the [detective] did not read him his . . . Miranda rights, the court
was entitled to credit the [detective’s] testimony over that of
defendant” (id. at 1320-1321; see People v Orso, 270 AD2d 947, 947-
948, lv denied 95 NY2d 856; see generally People v Prochilo, 41 NY2d
759, 761).

     Furthermore, the court credited the detective’s testimony that he
did not employ any coercion or threats of arrest or prosecution to
induce defendant to make the first statement (see People v Briggs, 124
AD3d 1320, 1321, lv denied 25 NY3d 1198). Contrary to the contention
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                                                         KA 14-01504

in defendant’s pro se supplemental brief, although the detective told
defendant that the police were not “going to arrest him that day,”
such an assurance did not render the circumstances here inherently
coercive or overbearing (see People v Richardson, 202 AD2d 958, 958-
959, lv denied 83 NY2d 914). In addition, despite the fact that the
recording of the phone call between the detective and defendant’s
mother may have weighed against the detective’s credibility with
respect to the nature of any promises that he may have made to
defendant, we conclude that his testimony was not “ ‘unbelievable as a
matter of law, manifestly untrue, physically impossible, contrary to
experience, or self-contradictory’ ” (People v Bush, 107 AD3d 1581,
1582, lv denied 22 NY3d 954). Contrary to defendant’s contention in
his main and pro se supplemental briefs, “[t]he testimony of defendant
[and his witnesses] at the suppression hearing that the [first]
statement was coerced by [the detective] and thus was not voluntary
presented a credibility issue that the suppression court was entitled
to resolve against defendant” (People v McIver, 76 AD3d 782, 782-783,
lv denied 15 NY3d 894; see Briggs, 124 AD3d at 1321). The remaining
grounds raised in defendant’s pro se supplemental brief in support of
his contention that the first statement was involuntarily made are
without merit. Inasmuch as the court properly determined that
defendant’s first statement was voluntarily made to the detective, his
further contention that the second statement should have been
suppressed on the ground that it was tainted by the illegality of the
first statement is necessarily without merit (see People v Walker, 267
AD2d 778, 780, lv denied 94 NY2d 926).

     We reject the further contention of defendant in his main and pro
se supplemental briefs that the evidence is legally insufficient to
establish his accessorial liability for the murder, i.e., that he
intentionally aided the shooters and “shared a ‘community of
purpose’ ” with them (People v Allah, 71 NY2d 830, 832; see Penal Law
§ 20.00; People v Scott, 25 NY3d 1107, 1109-1110). Viewing the
evidence in the light most favorable to the People (see People v
Contes, 60 NY2d 620, 621), we conclude that there is a valid line of
reasoning and permissible inferences enabling the jury to determine
beyond a reasonable doubt that defendant intentionally aided the
shooters in committing the crime and shared their intent to cause the
death of the victim (see People v Rossey, 89 NY2d 970, 972; People v
Pippins, 107 AD2d 826, 826-827). Contrary to defendant’s further
contention in his main and pro se supplemental briefs, viewing the
evidence in light of the elements of the crime 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).

     To the extent that the contention of defendant in his pro se
supplemental brief that he was denied effective assistance of counsel
at trial is based on matters outside the record on appeal, it must be
raised by way of a motion pursuant to CPL article 440 (see People v
Riley, 117 AD3d 1495, 1496, lv denied 24 NY3d 1088). We conclude on
the record before us that defendant received meaningful representation
(see People v Baldi, 54 NY2d 137, 147).
                                 -3-                          1025
                                                         KA 14-01504

     We reject the contention in defendant’s main brief that the court
erred in denying his request at sentencing for an adjournment and new
counsel in order to file a written motion to set aside the verdict
pursuant to CPL 330.30. Even assuming, arguendo, that defendant’s
complaints about defense counsel suggested a serious possibility of
good cause for a substitution of counsel requiring a need for further
inquiry, we conclude that the court afforded defendant the opportunity
to express his objections concerning defense counsel, and the court
thereafter reasonably concluded that defendant’s objections were
without merit (see People v Singletary, 63 AD3d 1654, 1654, lv denied
13 NY3d 839). Contrary to defendant’s further contention, upon our
review of the record, we conclude that defense counsel did not take a
position adverse to defendant at sentencing, and thus defendant was
not entitled to new counsel on that basis (see People v Jones, 261
AD2d 920, 920, lv denied 93 NY2d 972; see also People v Miller, 122
AD3d 1369, 1370, lv denied 25 NY3d 952; People v Collins, 85 AD3d
1678, 1679, lv denied 18 NY3d 993). Furthermore, to the extent that
defendant contends that he was denied effective assistance of counsel
at sentencing, we conclude that his contention lacks merit (see
Collins, 85 AD3d at 1679; Jones, 261 AD2d 920; see generally Baldi, 54
NY2d at 147). We reject defendant’s contention in his main brief that
the sentence is unduly harsh and severe.

     Finally, we have reviewed defendant’s remaining contentions
raised in his pro se supplemental brief and conclude that none
warrants reversal or modification of the judgment.




Entered:   November 18, 2016                    Frances E. Cafarell
                                                Clerk of the Court
