                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 18, 2015                     105211
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

CHAUNCEY WINCHELL, Also Known
   as CHAMP WINCHELL,
                    Appellant.
________________________________


Calendar Date:   April 27, 2015

Before:   McCarthy, J.P., Lynch, Devine and Clark, JJ.

                             __________


     John A. Cirando, Syracuse, for appellant.

      William G. Gabor, District Attorney, Wampsville (Robert A.
Mascari of counsel), for respondent.

                             __________


Devine, J.

      Appeals (1) from a judgment of the County Court of Madison
County (McDermott, J.), rendered April 4, 2012, upon a verdict
convicting defendant of the crimes of murder in the first degree,
robbery in the first degree (two counts), robbery in the second
degree, criminal use of a firearm in the first degree, criminal
possession of a weapon in the second degree (two counts),
unauthorized use of a motor vehicle in the first degree, criminal
possession of a weapon in the third degree and criminal
possession of stolen property in the fourth degree, and (2) from
a judgment of said court, rendered June 28, 2012, which
resentenced defendant.
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      Defendant and Mark Murray (hereinafter the victim) were
acquainted with one another and were both involved in the drug
trade in central New York. The victim received over $85,000 in
the settlement of a personal injury action in December 2007 and,
by May 2008, he owned a red Pontiac Firebird and carried
approximately $10,000 in cash on his person. According to
several individuals, defendant was interested in robbing a drug
dealer and indicated that he would do whatever was necessary in
order to ensure the success of that robbery. Defendant had
specifically targeted the victim by January 2008 and had made
statements that he intended to kill the victim and take the
victim's car. Defendant called the victim several times on May
22, 2008, and their cell phone records indicated that they
traveled together to Madison County. The victim was never seen
alive again and, shortly thereafter, defendant traveled to
Tennessee in a red Pontiac Firebird.

      In April 2010, the victim's skeleton was found in a shallow
grave in the City of Oneida, Madison County. An examination of
the body indicated that the victim had been shot multiple times
in the head. Defendant was thereafter charged in an indictment
with numerous offenses stemming from the robbery and death of the
victim. Following a jury trial, defendant was found guilty of
murder in the first degree, robbery in the first degree (two
counts), robbery in the second degree, criminal use of a firearm
in the first degree, criminal possession of a weapon in the
second degree (two counts), unauthorized use of a motor vehicle
in the first degree, criminal possession of a weapon in the third
degree and criminal possession of stolen property in the fourth
degree. County Court sentenced defendant to a prison term of
life without the possibility of parole upon the murder
conviction, with the sentences on the remaining convictions
running concurrently. After being advised that the required
period of postrelease supervision had not been imposed on some of
the counts, County Court resentenced defendant to correct that
omission. Defendant now appeals from the initial judgment of
conviction and the judgment on resentencing.

      We affirm. Defendant contends that the verdict was not
supported by legally sufficient evidence and was against the
weight of the evidence. Although his legal sufficiency argument
                              -3-                105211

is unpreserved due to the absence of a renewed motion to dismiss
at the close of proof, we necessarily evaluate whether all
elements of the charged crimes were proven beyond a reasonable
doubt under our weight of the evidence review (see People v Pine,
126 AD3d 1112, 1114 [2015]; People v Robinson, 123 AD3d 1224,
1225 [2014], lvs denied 25 NY3d 992, 993 [2015]). As noted
above, the victim carried large amounts of cash on his person,
several individuals indicated that defendant had targeted him for
robbery, and cell phone records indicated that defendant and the
victim were traveling together on May 22, 2008. The victim was
traveling in his red Pontiac Firebird on that day, and the last
activity on his cell phone occurred at 3:36 p.m. in the area
where his body would later be recovered. Defendant then appeared
at the adjoining residences of his brother and sister around 4:30
p.m. that afternoon, which his sister testified was about a 15-
minute drive from the area where the victim was buried. At that
point, defendant was driving a red Pontiac Firebird and was
behaving in a nervous manner. Defendant told his brother that he
had just been paid $10,000 for an unspecified job, and he was
observed with a gun. He further asked for a change of pants,
apparently burned the ones that he had been wearing, and disposed
of items that he had placed in a plastic bag during a walk in the
woods. Defendant traveled to Tennessee shortly thereafter, where
he disposed of clothing that was stored in the Pontiac Firebird
and expressed his displeasure that he had to identify himself to
sell the vehicle. Moreover, a convict who was being transported
with defendant shortly after the victim's body was discovered
testified that defendant had bragged of how he had gotten rid of
evidence that could tie him to the killing. Defendant vigorously
attacked the credibility of the People's witnesses and insinuated
that others may have been motivated to kill the victim. Even
assuming that a different verdict would not have been
unreasonable, however, "viewing the evidence in a neutral light
and giving deference to the jury's credibility determinations
leads us to conclude that defendant's conviction[s] [were] not
against the weight of the evidence" (People v Rizvi, 126 AD3d
1172, 1175 [2015]; see People v Augustine, 89 AD3d 1238, 1241-
1242 [2011], affd 21 NY3d 949 [2013]; People v Doyle, 48 AD3d
961, 962-963 [2008], lv denied 10 NY3d 862 [2008]).
                              -4-                105211

      Turning to defendant's complaints regarding the jury
selection process, County Court indicated that the parties would
have "about [15] or [20] minutes" for voir dire questioning, and
allowed defense counsel to question prospective jurors for 25
minutes. Defense counsel nevertheless indicated that he felt "a
little bit constrained" by the limit, prompting County Court to
allow 30 minutes for subsequent voir dire. In our view, these
limitations constituted a proper exercise of County Court's
"broad discretion to restrict the scope of voir dire by counsel"
(People v Jean, 75 NY2d 744, 745 [1989]; see CPL 270.15 [1] [c];
People v Jackson, 244 AD2d 757, 758 [1997], lv denied 91 NY2d 926
[1998]). County Court also did not abuse its discretion in
requiring that armed officers escort defendant to voir dire
conferences that he elected to attend. Defendant was not
restrained and wore civilian clothing during the trial and, given
the accusations of violent conduct against him, "the proximity to
a civilian prospective juror at the [conferences] warranted
caution and an appropriate security measure" (People v Vargas, 88
NY2d 363, 377 [1996]; see People v Gamble, 18 NY3d 386, 396-397
[2012]). Defendant, in any case, did not object to the procedure
until after jury selection, and County Court ameliorated any
prejudice by instructing the jury that the presence of the
officers was typical and that no adverse inference should be
drawn against defendant because of it.

      Defendant also asserts that County Court erred in excluding
testimony regarding the possibility that a third party had robbed
and killed the victim. "Before permitting evidence that another
individual committed the crime for which a defendant is on trial,
the court is required to determine if the evidence is relevant
and probative of a fact at issue in the case, and further that it
is not based upon suspicion or surmise" (People v Oxley, 64 AD3d
1078, 1081 [2009], lv denied 13 NY3d 941 [2010]; accord People v
Molina, 79 AD3d 1371, 1376 [2010], lv denied 16 NY3d 861 [2011];
see People v Primo, 96 NY2d 351, 356-357 [2001]). County Court
employed that procedure here and, in his offer of proof,
defendant indicated that two of the proposed witnesses would
testify that the third party had expressed an interest in robbing
the victim "at some point." The remaining witness would testify
that the third party "talk[ed] regularly about" the victim after
his disappearance and claimed (incorrectly) that someone had
                              -5-                105211

thrown his corpse into a body of water after a drug robbery.
Inasmuch as rank speculation would be required to infer the third
party's involvement in the crimes at issue from this hearsay
evidence, County Court properly balanced the minimal probative
value of that evidence against the strong potential for prejudice
and declined to admit it (see People v Gamble, 18 NY3d at 398-
399; People v Schulz, 4 NY3d 521, 529 [2005]; People v Primo, 96
NY2d at 356-357; compare People v Oxley, 64 AD3d at 1082-1083).

      Defendant's remaining arguments may be briefly disposed of.
County Court properly rejected his efforts to introduce expert
testimony regarding the dubious credibility of police informants.
A typical juror is capable of discerning why an informant might
lie in order to curry favor with law enforcement officials, and
expert testimony on that issue would constitute "a serious
usurpation of the jury's prerogative and responsibility" to
assess credibility (People v Parks, 41 NY2d 36, 48 [1976]; see
People v Williams, 6 NY2d 18, 26-27 [1959], cert denied 361 US
920 [1959]; see also People v Williams, 20 NY3d 579, 583-584
[2013]). Defendant's further claim that he was deprived of a
fair trial due to prosecutorial misconduct during the People's
opening statement and summation is largely unpreserved and,
regardless, the complained-of comments were "not so substantially
prejudicial as to deprive defendant of a fair trial, particularly
in light of the strength of the People's case and the
overwhelming proof of defendant's guilt" (People v Head, 90 AD3d
1157, 1158 [2011]; see People v Turcotte, 124 AD3d 1082, 1084
[2015]). Moreover, "[c]onsidering the brutal nature of the
crime, together with defendant's criminal record and apparent
lack of remorse, we find neither an abuse of discretion nor
extraordinary circumstances warranting a reduction of the
sentence" (People v Mattis, 108 AD3d 872, 876 [2013], lvs denied
22 NY3d 957 [2013]; see People v Shoemaker, 119 AD3d 1073, 1077
[2014], lv denied 25 NY3d 992 [2015]).

      We have examined defendant's remaining contentions and find
them to be unpersuasive.

     McCarthy, J.P., Lynch and Clark, JJ., concur.
                        -6-                  105211

ORDERED that the judgments are affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
