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

472
KA 13-01736
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARCUS J. GOTTSCHE, DEFENDANT-APPELLANT.


J. MICHAEL MARION, TONAWANDA, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered February 15, 2012. The judgment
convicted defendant, upon a jury verdict, of murder in the second
degree and criminal possession of marihuana in the second degree.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of, inter alia, murder in the second degree (Penal Law §
125.25 [1]), defendant contends that defense counsel and Supreme Court
treated as determinative his personal opinion with respect to whether
to submit lesser-included offenses to the jury and thus that he was
denied effective assistance of counsel within the meaning of People v
Colville (20 NY3d 20). We reject that contention.

     The Court of Appeals held in Colville (20 NY3d at 23) that “the
decision whether to seek a jury charge on lesser-included offenses is
a matter of strategy and tactics which ultimately rests with defense
counsel.” The defendant in Colville, like the defendant herein, was
charged with murder in the second degree (id. at 23). The defendant’s
attorney asked the court to submit the lesser-included offenses of
first- and second-degree manslaughter to the jury, and the court
agreed (id.). The defendant, however, later decided that he did not
want the jury to consider any lesser-included offenses (id. at 25).
Defense counsel “repeatedly voiced his professional judgment that it
was in the client’s best interests for the jury to be instructed on
the[ ] lesser-included offenses” and, “despite the defense attorney’s
clearly stated views and advice to the contrary,” the judge “made
plain that he would be guided solely by defendant’s choice in the
matter” (id. at 32 [emphasis added]). The Court concluded that the
trial court erred because the decision with respect to lesser-included
offenses “was for the attorney, not the accused, to make” (id.).
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                                                         KA 13-01736

According to the Court, “[b]y deferring to defendant, the judge denied
him the expert judgment of counsel to which the Sixth Amendment
entitles him” (id.).

     Here, unlike in Colville, there is nothing in the record to
establish that the decision to forgo the submission of lesser-included
offenses was made solely in deference to defendant, that it was
against the advice of defendant’s counsel, or that it was inconsistent
with defense counsel’s trial strategy. After the People rested, the
court asked defense counsel whether he intended to request any lesser-
included offenses. Defense counsel indicated that he did, but that he
“just need[ed] to confirm that with my client.” During the charge
conference, defense counsel informed the court that, after discussing
the issue with defendant over the last several weeks, counsel “made
[his] suggestions to [defendant] and [it was counsel’s] understanding
that we are not asking for the lesser charge of manslaughter in the
second degree.” Defense counsel indicated that there was nothing else
he wished to say with respect to the lesser-included offense issue.
After the court denied defense counsel’s request for a justification
charge, the court again raised the issue of lesser-included offenses,
noting that defendant’s decision had been made without the benefit of
the court’s ruling on justification. Defense counsel advised the
court that defendant “still does not want me to ask for any lesser
included offenses. I did speak to him after the Court made its ruling
last week Friday about it to see if it would change his mind. I spoke
to him again this morning for a few moments and it’s still my
understanding that he does not wish that I ask for any lesser included
offenses.” Again, defense counsel declined to make any further
comment on the issue.

     While it is clear from the record that defendant was opposed to
the submission of lesser-included offenses to the jury, there is no
indication in the record that defense counsel’s position differed from
that of his client. Rather, the record is equally consistent with the
inference that, after discussing the issue at length, defense counsel
agreed with or acceded to defendant’s position (cf. People v Alvarez,
106 AD3d 568, lv denied 21 NY3d 1013). This case is therefore
distinguishable from Colville, in which “[t]he record show[ed] that
the defense attorney never deviated from his position that ‘going for
broke’ was tactically unwise . . . In short, the defense attorney
never ‘acceded’ or ‘acquiesc[ed]’ to defendant’s decision . . . except
to the extent the judge impermissibly left him no alternative” (20
NY3d at 32 [emphasis added]). Here, by contrast, the record supports
the conclusion that, “after consulting with and weighing the accused’s
views along with other relevant considerations, [defense counsel]
decide[d] to forgo submission of lesser-included offenses to the jury”
(id.). We thus conclude that, on the record before us, it cannot be
said that defendant was “denied . . . the expert judgment of counsel
to which the Sixth Amendment entitles him” (id.).

     Contrary to the further contention of defendant, we conclude that
the evidence is legally sufficient to establish his intent to kill,
and that the verdict is not against the weight of the evidence with
respect to that element of the crime. It is well established that
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                                                         KA 13-01736

“[i]ntent to kill may be inferred from defendant’s conduct as well as
the circumstances surrounding the crime” (People v Price, 35 AD3d
1230, 1231, lv denied 8 NY3d 926; see People v Lopez, 96 AD3d 1621,
1622, lv denied 19 NY3d 998; People v Badger, 90 AD3d 1531, 1532, lv
denied 18 NY3d 991). Viewing the evidence in the light most favorable
to the People (see People v Contes, 60 NY2d 620, 621), we conclude
that the evidence is legally sufficient to establish that defendant
intended to kill the victim (see People v Thomas, 96 AD3d 1670, 1674;
People v Lucas, 94 AD3d 1441, 1441, lv denied 19 NY3d 964). The
People presented evidence that, shortly before the shooting, defendant
and the victim were involved in a heated argument and physical
altercation, which escalated into a standoff with knives (see Lucas,
94 AD3d at 1441; People v Evans, 242 AD2d 948, 949, lv denied 91 NY2d
834; see also Lopez, 96 AD3d at 1622). Defendant then went upstairs
and grabbed a loaded .22-caliber semi-automatic rifle from the side of
his bed. The record reflects that defendant had four firearms in his
house. In addition to the rifle at issue, defendant had a .308
caliber French military rifle, which was not readily operable, and two
BB guns, one of which was in the kitchen where the altercation
occurred. Defendant, however, chose the most lethal option available
to him, i.e., the loaded .22-caliber rifle from his bedroom. With
respect to the shooting itself, a witness testified that, after firing
a single shot into the ground from the staircase, defendant turned and
fired a second shot “towards the front door,” out of which the victim
was fleeing. Indeed, in his statement to the police, defendant stated
that he remembered “shooting once at [the victim] as she went out the
door.” We therefore conclude that “there is [a] 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
evidence at trial,” i.e., that defendant intended to kill the victim
(People v Bleakley, 69 NY2d 490, 495; see Lucas, 94 AD3d at 1441;
Evans, 242 AD2d at 949).

     We further conclude that, although a different verdict would not
have been unreasonable, the verdict is not against the weight of the
evidence (see generally Bleakley, 69 NY2d at 495). It is well
established that “ ‘[r]esolution of issues of credibility, as well as
the weight to be accorded to the evidence presented, are primarily
questions to be determined by the jury’ ” (Lopez, 96 AD3d at 1622),
and we cannot conclude that the jury failed to give the evidence the
weight it should be accorded (see People v Johnson, 38 AD3d 1327,
1328, lv denied 9 NY3d 866; People v Phong T. Le, 277 AD2d 1036, 1036,
lv denied 96 NY2d 762).

     Defendant further contends that he was denied a fair trial by
prosecutorial misconduct on summation. We note that defendant failed
to object to most of the alleged instances of misconduct, and thus his
challenges to those remarks are unpreserved for our review (see CPL
470.05 [2]; People v Smith, 32 AD3d 1291, 1292, lv denied 8 NY3d 849).
In any event, we conclude that the majority of the prosecutor’s
comments “were either a fair response to defense counsel’s summation
or fair comment on the evidence” (People v Goupil, 104 AD3d 1215,
1216, lv denied 21 NY3d 943 [internal quotation marks omitted]; see
                                 -4-                           472
                                                         KA 13-01736

People v Wilson, 104 AD3d 1231, 1233, lv denied 21 NY3d 1011,
reconsideration denied 21 NY3d 1078). While the prosecutor’s repeated
comments to the effect that defendant “aimed” the rifle at the fleeing
victim may have been an overstatement of the facts, we nonetheless
conclude that those comments “remained within the broad bounds of
rhetorical comment permissible during summations” (People v Wellborn,
82 AD3d 1657, 1658, lv denied 17 NY3d 803 [internal quotation marks
omitted]). We further conclude that any improper remarks were “not so
pervasive or egregious as to deprive defendant of a fair trial”
(People v Johnson, 303 AD2d 967, 968, lv denied 100 NY2d 583 [internal
quotation marks omitted]; see People v Willis, 79 AD3d 1739, 1741, lv
denied 16 NY3d 864), and thus that defense counsel’s failure to object
to the allegedly improper comments did not constitute ineffective
assistance of counsel (see People v Koonce, 111 AD3d 1277, 1278-1279).

     Finally, we conclude that the sentence is not unduly harsh or
severe under the circumstances of this case.




Entered:   June 13, 2014                        Frances E. Cafarell
                                                Clerk of the Court
