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

850
KA 07-02436
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHARLES K. WILSON, DEFENDANT-APPELLANT.


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Stephen R. Sirkin, A.J.), rendered September 17, 2007. The judgment
convicted defendant, upon a jury verdict, of attempted murder in the
second degree, robbery in the first degree (two counts), burglary in
the first degree (three counts), assault in the first degree (two
counts) and assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing that part convicting
defendant of attempted murder in the second degree and dismissing the
ninth count of the amended indictment and by directing that the
sentences on the remaining counts shall run concurrently with respect
to each other and as modified the judgment is affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of, inter alia, attempted murder in the second degree
(Penal Law §§ 110.00, 125.25 [2]), arising from a home invasion,
defendant contends that the attempted murder count was rendered
duplicitous by the testimony at trial. We agree with defendant, as we
agreed with his codefendant on a prior appeal, that the conviction of
attempted murder in the second degree must be reversed because, based
on the evidence presented at trial, “ ‘the jury may have convicted
defendant of an unindicted [attempted murder], resulting in the
usurpation by the prosecutor of the exclusive power of the [g]rand
[j]ury to determine the charges’ ” (People v Boykins, 85 AD3d 1554,
1555, lv denied 17 NY3d 814). We reach this issue despite defendant’s
failure to preserve it (see People v Lane, 106 AD3d 1478, 1481, lv
denied 21 NY3d 1043; People v Filer, 97 AD3d 1095, 1096, lv denied 19
NY3d 1025). We therefore modify the judgment by reversing that part
convicting defendant of attempted murder in the second degree and
dismissing the ninth count of the amended indictment. We further
agree with defendant that the sentences imposed on the remaining
                                 -2-                           850
                                                         KA 07-02436

counts must run concurrently with respect to each other, and we
therefore further modify the judgment accordingly (see Boykins, 85
AD3d at 1555).

     Contrary to defendant’s further contention, Supreme Court did not
err in refusing to suppress identification evidence. “ ‘Multiple
photo identification procedures are not inherently suggestive’ ”
(People v Dickerson, 66 AD3d 1371, 1372, lv denied 13 NY3d 859).
“While ‘the inclusion of a single suspect’s photograph in successive
arrays is not a practice to be encouraged, it does not per se
invalidate the identification procedures’ ” (People v Beaty, 89 AD3d
1414, 1415, affd 22 NY3d 918; see Dickerson, 66 AD3d at 1372). Here,
although there was not a significant lapse of time between the
presentation of the arrays (see Beaty, 89 AD3d at 1415; cf. Dickerson,
66 AD3d at 1372), the record establishes that different photographs of
defendant were used, that the photographs of defendant appeared in a
different location in each photo array (see Dickerson, 66 AD3d at
1372), and that the fillers were very similar in appearance to
defendant (see generally People v Chipp, 75 NY2d 327, 336, cert denied
498 US 833). We also conclude that the court did not err in
determining that defendant’s statements to the police during a brief
exchange, made by defendant after he refused to waive his Miranda
rights, were voluntary and thus were admissible for impeachment
purposes (see People v Maerling, 64 NY2d 134, 140; People v
Stephanski, 286 AD2d 859, 860). Here, the People met their initial
“burden at the Huntley hearing of establishing that defendant’s . . .
statements were not the product of ‘improper police conduct’ ” (People
v Rapley [appeal No. 1], 59 AD3d 927, 927, lv denied 12 NY3d 858), and
“[d]efendant presented no bona fide factual predicate in support of
his conclusory speculation that his statement[s were] coerced” (id.
[internal quotation marks omitted]).

     Contrary to defendant’s further contention, the court did not
abuse its discretion in denying his motion to sever his trial from
that of his codefendant (see People v Mahboubian, 74 NY2d 174, 183).
Where counts are properly joined pursuant to CPL 200.40 (1), a
defendant may nevertheless seek severance for “ ‘good cause shown’ ”
(id.). “Good cause . . . includes, but is not limited to, a finding
that a defendant ‘will be unduly prejudiced by a joint trial’ ” (id.,
quoting CPL 200.40 [1]). “Upon such a finding of prejudice, the court
may order counts to be tried separately, grant a severance of
defendants or provide whatever other relief justice requires” (CPL
200.40 [1]). Here, defendant contends that, if he had testified at
trial, he would have been prejudiced by the admission in evidence of a
statement of his codefendant indicating that the codefendant had
merely “heard” of defendant’s involvement in this home invasion. We
reject that contention, and we note that the statement is not
incriminating and thus does not implicate Bruton v United States (391
US 123), wherein “the Supreme Court held that a defendant is deprived
of his rights under the Confrontation Clause when his codefendant’s
incriminating confession is introduced at their joint trial, even if
the jury is specifically instructed to consider the confession only
against the codefendant” (People v Eastman, 85 NY2d 265, 271 n 2).
                                 -3-                           850
                                                         KA 07-02436

Defendant further contends that, if he had testified at trial, he and
his codefendant would have been placed in antagonistic positions
inasmuch as the codefendant would not have been bound by the court’s
Sandoval ruling in cross-examining defendant. Defendant is correct
that the codefendant would not have been bound by the court’s
Sandoval ruling (see People v McGee, 68 NY2d 328, 333; People v
Padilla, 181 AD2d 1051, 1052, lv denied 79 NY2d 1052). Nevertheless,
inasmuch as both defendants were charged with principal and accomplice
liability for the same crimes, both defendants noticed alibi defenses,
and both defendants were familiar to the eyewitnesses prior to the
shooting, we see no basis for concluding that defendants would have
“antagonized” each other at trial. Had one defendant attacked the
other, the “attacking” defendant essentially would have taken the
position that the eyewitnesses correctly identified only the “other”
defendant.

     Viewing the evidence, the law and the circumstances of this case,
in totality and as of the time of representation, we conclude that
defendant received meaningful representation (see generally People v
Baldi, 54 NY2d 137, 147). Defendant’s contention that defense counsel
was ineffective in failing to request a missing witness charge has no
merit because there was no basis for such a charge (see People v
Hicks, 110 AD3d 1488, 1489, lv denied 22 NY3d 1156), and an attorney’s
“failure to ‘make a motion or argument that has little or no chance of
success’ ” does not amount to ineffective assistance (People v Caban,
5 NY3d 143, 152, quoting People v Stultz, 2 NY3d 277, 287, rearg
denied 3 NY3d 702). Viewing the evidence in light of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we also
conclude that the verdict is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495). “[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” (People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942
[internal quotation marks omitted]), and “the jury was entitled to
reject certain portions of the victim’s testimony while crediting
other portions” (People v McCray, 96 AD3d 1480, 1480, lv denied 19
NY3d 1104). It cannot be said that the testimony of the eyewitnesses
was “ ‘incredible and unbelievable, that is, impossible of belief
because it [was] manifestly untrue, physically impossible, contrary to
experience, or self-contradictory’ ” (People v Mohamed, 94 AD3d 1462,
1463-1464, lv denied 19 NY3d 999, reconsideration denied 20 NY3d 934).

     Finally, we have reviewed defendant’s remaining contention, and
we conclude that it has been rendered academic as a result of our
decision herein.




Entered:   September 26, 2014                   Frances E. Cafarell
                                                Clerk of the Court
