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

692
KA 12-01676
PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRANDON E. HARPER, DEFENDANT-APPELLANT.


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.

BRANDON E. HARPER, DEFENDANT-APPELLANT PRO SE.

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


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered September 4, 2012. The judgment convicted
defendant, upon a jury verdict, of murder in the first degree, murder
in the second degree (two counts) and attempted robbery in the first
degree.

     It is hereby ORDERED that the judgment so appealed from is
modified as a matter of discretion in the interest of justice and on
the law by reversing the conviction of attempted robbery in the first
degree, vacating the sentence imposed thereon, and dismissing that
count of the indictment.

     Memorandum: On appeal from a judgment convicting him, following
a jury trial, of one count of murder in the first degree (Penal Law §
125.27 [1] [a] [vii]; [b]), two counts of murder in the second degree
(§ 125.25 [1], [3]) and one count of attempted robbery in the first
degree (§§ 110.00, 160.15 [2]), defendant contends, inter alia, that
the conviction is not supported by legally sufficient evidence and
that the verdict is against the weight of the evidence. With respect
to the sufficiency of the evidence, defendant contends that there is
insufficient evidence that the killing was in furtherance of an
attempted robbery or that an attempted robbery even occurred.
Specifically, defendant contends that there was no proof to
corroborate defendant’s admission that the homicide occurred during an
attempted robbery. Inasmuch as defendant did not move to dismiss the
first count of the indictment, charging defendant with murder in the
first degree, on the ground that there was insufficient evidence of an
attempted robbery and did not move to dismiss the attempted robbery
count on the ground that defendant’s admission was not corroborated,
defendant has failed to preserve for our review those contentions with
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respect to those counts of the indictment (see People v Gray, 86 NY2d
10, 19). He did, however, preserve those contentions for our review
with respect to the felony murder count of the indictment, and we
exercise our power to review the unpreserved contentions as a matter
of discretion in the interest of justice (see CPL 470.15 [6] [a]).

     “A person may not be convicted of any offense solely upon
evidence of a confession or admission made by him [or her] without
additional proof that the offense charged has been committed” (CPL
60.50; see generally People v Chico, 90 NY2d 585, 589-590). With
respect to the counts of murder in the first degree and felony murder,
it is well settled that “CPL 60.50 does not require corroboration of
defendant’s confession to the underlying predicate felony” to sustain
a conviction of murder in the first degree or felony murder, when the
charge is based on a murder committed in the course of and in
furtherance of one of many enumerated felonies (People v Davis, 46
NY2d 780, 781; see People v Daley, 47 NY2d 916, 917, rearg denied 48
NY2d 882; People v Lytton, 257 NY 310, 313-314; People v Alexander, 51
AD3d 1380, 1382, lv denied 11 NY3d 733). “The effect of the
confession corroboration statute is to require proof of the corpus
delicti” (People v Murray, 40 NY2d 327, 331, rearg denied 40 NY2d
1080, cert denied 430 US 948). With felony murder and murder in the
first degree, the corpus delicti is a death resulting from someone’s
criminality, i.e., a death that did not occur by suicide, disease or
accident (see id. at 332-333; Lytton, 257 NY at 313-314). The fact
that the victim was found dead as the result of a gunshot wound is
sufficient corroboration (see People v Hamilton, 121 AD2d 395, 396).

     The same analysis does not apply to the underlying felony itself.
Where, as here, there is no corroboration of a defendant’s confession
with respect to the underlying felony, that count of the indictment
charging the defendant with the underlying felony must be dismissed
(see People v Velez, 122 AD2d 178, 178-179, lv denied 70 NY2d 658; see
also Davis, 46 NY2d at 781; Murray, 40 NY2d at 330-331). Here, as in
Velez, there was no “ ‘additional proof that the offense [of attempted
robbery] ha[d] been committed’ ” (id. at 178, quoting CPL 60.50). We
therefore modify the judgment accordingly.

      Contrary to defendant’s further contention, the verdict is not
against the weight of the evidence on the issues of his identity as
the shooter and his intent to kill the victim (see generally People v
Bleakley, 69 NY2d 490, 495). In our view, “there was ample
circumstantial evidence establishing defendant’s identity as the
shooter” (People v Moore [appeal No. 2], 78 AD3d 1658, 1659, lv denied
17 NY3d 798; see People v Rivera, 112 AD3d 1288, 1289, lv denied 23
NY3d 1024), as well as his intent to kill. “[I]t should be obvious
that the more the defendant shoots . . . the victim, the more clearly
intentional is the homicide” (People v Payne, 3 NY3d 266, 272, rearg
denied 3 NY3d 767). Here, the evidence established that there were
multiple shots fired at the victim. We thus conclude that defendant’s
“criminal intent was readily inferable from his conduct” (People v
Guy, 93 AD3d 877, 881, lv denied 19 NY3d 961; see Payne, 3 NY3d at
272).
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                                                         KA 12-01676

     Defendant contends that he was denied effective assistance of
counsel based on defense counsel’s failure to move to preclude
defendant’s written confession and failure to raise certain
contentions in moving to suppress defendant’s statements. We reject
that contention. There is no dispute that neither the initial CPL
710.30 notice nor the revised CPL 710.30 notice referenced defendant’s
written statement. While preclusion may have been warranted (see
People v Phillips, 183 AD2d 856, 858, lv denied 80 NY2d 908), defense
counsel made the strategic decision to pursue suppression of the
statement, rendering the statement admissible at trial (see People v
Lane, 132 AD2d 855, 856, lv denied 70 NY2d 801). We are “not prepared
to say that [defense counsel’s] decision to proceed with the motion to
suppress [instead of a motion to preclude] deprived his client of the
effective assistance of counsel” (People v Borthwick, 51 AD3d 1211,
1216, lv denied 11 NY3d 734). In any event, “[d]efendant’s assertion
of an ineffective assistance of counsel claim based on defense
counsel’s strategic decision to seek suppression of statements instead
of moving to preclude the statements based on the People’s failure to
provide a CPL 710.30 notice require[s] a CPL 440.10 motion in order to
afford defense counsel an opportunity to explain his strategy” (People
v Milsner, 34 Misc 3d 150[A], 2011 NY Slip Op 52496[U], *2, lv
denied 18 NY3d 884; see People v Gross, 21 AD3d 1224, 1225).

     Defendant further contends in his main brief and his pro se
supplemental brief that defense counsel was ineffective in failing to
pursue suppression of the post-Miranda statements on the grounds that
there was a single, continuous chain of events and that the statements
were obtained as a result of a pretextual arrest for trespass. Those
contentions lack merit. First, the evidence at the Huntley hearing
established that there was a “definite, pronounced break in the
interrogation” (People v Chapple, 38 NY2d 112, 115). There was over
one hour between the initial Miranda violation and the issuance of
Miranda warnings, which were followed by the post-Miranda statements.
Different officers were involved, and there was a change in location
(see People v Paulman, 5 NY3d 122, 130-131; People v Heck, 103 AD3d
1140, 1142, lv denied 21 NY3d 1074; People v Parker, 50 AD3d 1607,
1607, lv denied 11 NY3d 792; cf. People v Bethea, 67 NY2d 364, 366-
368; Chapple, 38 NY2d at 115). Moreover, “the brevity of the initial
exchange is significant” (People v White, 10 NY3d 286, 292, cert
denied 555 US 897). Second, defendant’s arrest for a minor offense
“cannot be characterized as a ‘sham’ merely because, after [defendant]
was taken into custody, the police were more interested in questioning
him about a different and graver crime” (People v Fulton, 257 AD2d
774, 775, lv denied 93 NY2d 1018; see People v Clarke, 5 AD3d 807,
810, lv denied 2 NY3d 797; cf. People v Burley, 60 AD2d 973, 973-974).
We thus conclude that defendant has failed to establish that defense
counsel was ineffective in failing to seek suppression on those
grounds, inasmuch as “[t]here can be no denial of effective assistance
of trial counsel arising from counsel’s failure to ‘make a motion or
argument that has little or no chance of success’ ” (People v Caban, 5
NY3d 143, 152).

     Defendant contends that County Court erred in its charge to the
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                                                         KA 12-01676

jury when it stated on one occasion that the murder had to occur in
the course of or in furtherance of the attempted robbery. Defendant
failed to object to that misstatement, however, and failed to preserve
for our review his contention that the misstatement lessened the
People’s burden of proof (see Gray, 86 NY2d at 19; People v Roman, 190
AD2d 831, 831, affd 83 NY2d 866). In any event, defendant’s
contention lacks merit. The court repeatedly instructed the jury that
the murder had to occur in the course of and in furtherance of the
attempted robbery, and we conclude that “the charge as a whole
adequately conveyed the required standard” (People v Samuels, 99 NY2d
20, 26).

     Defendant waived any challenge to the court’s annotation of the
verdict sheet inasmuch as he requested the annotation (see People v
Cipollina, 94 AD3d 1549, 1550, lv denied 19 NY3d 971). In addition,
by failing to object to the prosecutor’s summation, defendant failed
to preserve for our review his contention that he was denied a fair
trial when the prosecutor misstated the law concerning felony murder
(see People v Waterford, 124 AD3d 1246, 1247-1248; People v Goodman,
190 AD2d 862, 862, lv denied 81 NY2d 971). In any event, that
contention lacks merit. “To the extent that a portion of the
prosecutor’s summation could be viewed as containing a misstatement of
law, . . . any prejudice was avoided by the court’s instructions,
which the jury is presumed to have followed” (People v Padin, 121 AD3d
628, 629; see Waterford, 124 AD3d at 1247-1248).

     Contrary to defendant’s contention, the court properly allowed
the girlfriend of a codefendant to testify concerning statements made
by defendant and the codefendant immediately after the incident.
Those statements qualified as both excited utterances (see People v
Johnson, 1 NY3d 302, 305-306; People v Edwards, 47 NY2d 493, 497), and
adoptive admissions (see People v Campney, 94 NY2d 307, 311-312).
Defendant further contends that the admission of the codefendant’s
statements made to and in front of the codefendant’s girlfriend
violated defendant’s right of confrontation. That contention is not
preserved for our review, and such a contention, whether based on
Bruton v United States (391 US 123) or Crawford v Washington (541 US
36), requires preservation (see People v Kello, 96 NY2d 740, 744;
People v Gilocompo, 125 AD3d 1000, 1001). In any event, we have
reviewed defendant’s contention and conclude that it lacks merit.
There was no Bruton violation where, as here, defendant and the
codefendant were not tried jointly (see People v Baker, 26 NY2d 169,
172-173), and there was no Crawford violation because the statements
were “neither elicited in a formal manner nor elicited by an
investigator” (People v Paul, 25 AD3d 165, 170, lv denied 6 NY3d 757).

     Finally, we agree with defendant that the certificate of
conviction incorrectly recites that he was convicted of murder in the
first degree as a “murder of a police officer.” The certificate of
conviction must therefore be amended to reflect that he was convicted
under Penal Law § 125.27 (1) (a) (vii) (see e.g. People v Knighton,
109 AD3d 1205, 1206; People v Jackson, 41 AD3d 1268, 1268-1269, lv
denied 10 NY3d 812, reconsideration denied 11 NY3d 789).
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     All concur except SCONIERS, J., who is not participating.




Entered:   October 2, 2015                       Frances E. Cafarell
                                                 Clerk of the Court
