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

434
KA 10-01638
PRESENT: SMITH, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PHILLIP HOLLOWAY, DEFENDANT-APPELLANT.


ROBERT M. PUSATERI, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

PHILLIP HOLLOWAY, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Matthew J.
Murphy, III, J.), rendered July 20, 2010. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree and
criminal possession of a weapon 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 § 125.25
[1]) and criminal possession of a weapon in the second degree (§
265.03 [3]). Defendant’s contention that the evidence is legally
insufficient to support the conviction on the grounds that the
testimony of an alleged accomplice was both uncorroborated and
incredible as a matter of law is not preserved for our review because
defendant failed to move for a trial order of dismissal on either of
those grounds (see People v Sudler, 75 AD3d 901, 904, lv denied 15
NY3d 956; People v Story, 68 AD3d 1737, 1738, lv denied 14 NY3d 844).
Defendant also failed to preserve for our review his contention that
the evidence is legally insufficient to support the conviction on the
ground that a second alleged accomplice was actually the shooter and
that defendant did not act as his accomplice (see generally People v
Molson, 89 AD3d 1539, 1539-1540), having failed to renew his motion
for a trial order of dismissal on that ground after presenting
evidence (see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d
678). In any event, we reject those contentions (see generally People
v Bleakley, 69 NY2d 490, 495).

     We reject defendant’s further contention that his statement to
the police in which he admitted shooting the victim was not
                                 -2-                           434
                                                         KA 10-01638

corroborated. “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,”
but the corroborating proof need not establish that defendant
committed the offense (CPL 60.50; see People v Fulmore, 91 AD2d 1184).
Here, a witness testified concerning the facts and circumstances of
the shooting, and the medical examiner testified that the victim’s
death was considered a homicide as the result of multiple gunshot
wounds.

     We further conclude that County Court properly refused to
suppress his inculpatory statements to the police on the ground that
they were elicited in violation of his right to counsel. “[D]efendant
failed to meet his ultimate burden by presenting evidence establishing
that he was in fact represented by counsel at the time of
interrogation, as defendant contended” (People v Hilts, 19 AD3d 1178,
1179; see People v Cameron, 6 AD3d 273, 273-274, lv denied 3 NY3d
672). Contrary to defendant’s contention, the court properly imposed
consecutive sentences (see People v Jones, 66 AD3d 1442, 1443, lv
denied 13 NY3d 939). The sentence is not unduly harsh or severe.

     Defendant contends in his pro se supplemental brief that his
right to counsel was violated when he made his inculpatory statements
to the police because his indelible right to counsel had attached when
the felony complaint in this matter was filed, before he made the
statements (see generally People v Samuels, 49 NY2d 218, 221-223).
Although that contention is reviewable on appeal even in the absence
of preservation (see id. at 221), we are unable to review it because
we are unable to discern from the record before us when, if ever, a
felony complaint was filed (see generally People v McLean, 15 NY3d
117, 119). Defendant further contends in his pro se supplemental
brief that he was denied the right to effective assistance of counsel
based on defense counsel’s failure to preserve for our review the
issue concerning the alleged attachment of his right to counsel upon
the filing of the felony complaint, and based on defense counsel’s
failure to object when the prosecutor allegedly violated the Rosario
rule. Because that contention and the underlying contention
concerning the violation of defendant’s right to counsel based on the
filing of the felony complaint involve matters outside the record on
appeal, they are properly raised by way of a CPL article 440 motion
(see People v Johnson, 88 AD3d 1293, 1294; People v Ellis, 73 AD3d
1433, 1434, lv denied 15 NY3d 851).

     We have considered defendant’s remaining contentions in his main
and pro se supplemental briefs, and we conclude that they are without
merit.




Entered:   July 6, 2012                         Frances E. Cafarell
                                                Clerk of the Court
