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

871
KA 12-02096
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BANGALY CHELLEY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

BANGALY CHELLEY, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (SYDNEY V. PROBST OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered October 9, 2012. 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: On appeal from a judgment convicting him following a
jury trial 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 contends that Supreme Court erred in failing to give the
jury a circumstantial evidence charge. Defendant failed to preserve
that contention for our review, however, inasmuch as he did not
request a circumstantial evidence charge and did not object to the
court’s instructions as given (see People v Recore, 56 AD3d 1233,
1234, lv denied 12 NY3d 761; People v Ponder, 19 AD3d 1041, 1042-1043,
lv denied 5 NY3d 809; see generally CPL 470.05 [2]). In any event, a
circumstantial evidence charge was not required “because the People’s
case was not based entirely on circumstantial evidence” (People v Way,
115 AD3d 558, 558; see People v Daddona, 81 NY2d 990, 992; People v
Smith, 90 AD3d 1565, 1566, lv denied 18 NY3d 998). The People offered
direct evidence from two witnesses who testified that they had
observed defendant fire multiple shots from a handgun in the area
where the victim was fatally shot. Another witness testified that,
after she had told defendant that he could not shoot straight and that
he had “hit” one of his “own people,” defendant had called her a
“bitch” and said “I’m going to kill you too.” That statement from
defendant is tantamount to an admission, which constitutes direct
evidence (see generally People v Guidice, 83 NY2d 630, 636; People v
                                 -2-                           871
                                                         KA 12-02096

Rogers, 103 AD3d 1150, 1154, lv denied 21 NY3d 946).

     Defendant further contends that the verdict is against the weight
of the evidence because the People’s key witnesses were not credible.
We reject that contention. Even assuming, arguendo, that a different
verdict would not have been unreasonable, “the jury was in the best
position to assess the credibility of the witnesses and, on this
record, it cannot be said that the jury failed to give the evidence
the weight it should be accorded” (People v Orta, 12 AD3d 1147, 1147,
lv denied 4 NY3d 801; see People v Kalinowski, 118 AD3d 1434, 1436;
People v Canfield, 111 AD3d 1396, 1397, lv denied 22 NY3d 1087).
Furthermore, viewing the evidence in light of the elements of the
crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).

     We also reject defendant’s challenge to the severity of his
sentence. Considering that defendant’s senseless actions resulted in
the death of an innocent bystander, who was outside fixing his
granddaughter’s bicycle when he was struck in the head by a bullet
from a gun fired by defendant at another person, we perceive no basis
upon which to exercise our discretion to modify his sentence in the
interest of justice (see CPL 470.15 [6] [b]).

     In his pro se supplemental brief, defendant contends that the
court erred in admitting into evidence the victim’s autopsy report
because defendant was unable to confront the medical examiner who
prepared the report. That contention is unpreserved for our review,
however, inasmuch as defendant failed to object to the autopsy report
at trial (see CPL 470.05 [2]; People v Jackson, 117 AD3d 966, 968).
In any event, the contention lacks merit because the autopsy report
does not constitute testimonial evidence (see People v Freycinet, 11
NY3d 38, 42; People v Green, 110 AD3d 825, 826, lv denied 22 NY3d
1139).

     We have reviewed the remaining contentions set forth in the pro
se supplemental brief and conclude that they lack merit.




Entered:   October 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
