Opinion
99 KA 18–00713
04-24-2020
The PEOPLE of the State of New York, Respondent, v. Detavion MAGEE, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL PUNCH OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL PUNCH OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, after a nonjury trial, of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ). We affirm.
Insofar as defendant contends that the People failed to present legally sufficient evidence establishing that the handgun allegedly in his possession was operable and loaded with live ammunition, we conclude that he failed to preserve that contention for our review (see CPL 470.05[2] ; People v. Spears, 125 A.D.3d 1401, 1402, 3 N.Y.S.3d 535 [4th Dept. 2015], lv denied 25 N.Y.3d 1172, 15 N.Y.S.3d 303, 36 N.E.3d 106 [2015] ). Although defendant preserved for our review his contention that the evidence is legally insufficient to establish that he possessed a loaded firearm at all, we reject that contention (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Furthermore, viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ; People v. Nicholas, 130 A.D.3d 1314, 1315, 14 N.Y.S.3d 214 [3d Dept. 2015] ). The victim's teenage sister testified that she saw defendant fire a handgun during a gunfight that took place near her home, and two other witnesses testified that they saw a man matching defendant's description fire a handgun. Although the police did not recover a handgun, they did recover several shell casings, including some from a small caliber gun. Thus, "the People supplied the necessary proof through circumstantial evidence, i.e., ‘eyewitness testimony and surrounding circumstances,’ " establishing that defendant possessed a loaded and operable firearm at the location and time of the incident ( Spears, 125 A.D.3d at 1402, 3 N.Y.S.3d 535 ; see People v. Butler, 140 A.D.3d 1610, 1610–1611, 33 N.Y.S.3d 602 [4th Dept. 2016], lv denied 28 N.Y.3d 969, 43 N.Y.S.3d 257, 66 N.E.3d 3 [2016] ; People v. Singletary, 11 A.D.3d 567, 568, 782 N.Y.S.2d 800 [2d Dept. 2004], lv denied 4 N.Y.3d 748, 790 N.Y.S.2d 661, 824 N.E.2d 62 [2004] ). Although defendant contends that the victim's sister was not credible, County Court explicitly found her testimony to be "credible and compelling," and such a determination is entitled to great deference (see People v. Howard, 101 A.D.3d 1749, 1750, 956 N.Y.S.2d 784 [4th Dept. 2012], lv denied 21 N.Y.3d 944, 968 N.Y.S.2d 6, 990 N.E.2d 140 [2013] ), given the court's "opportunity to ‘view the witness, hear the testimony and observe demeanor’ " ( People v. Collins, 70 A.D.3d 1366, 1367, 897 N.Y.S.2d 803 [4th Dept. 2010], lv denied 14 N.Y.3d 839, 901 N.Y.S.2d 146, 927 N.E.2d 567 [2010] ).
We similarly reject defendant's contention that he was denied effective assistance of counsel. With respect to defense counsel's alleged conflict of interest, defendant did not meet his burden of "establishing that the conduct of his defense was in fact affected by the operation of the [alleged] conflict of interest" ( People v. Pohl, 160 A.D.3d 1453, 1454, 76 N.Y.S.3d 337 [4th Dept. 2018], lv denied 32 N.Y.3d 940, 84 N.Y.S.3d 867, 109 N.E.3d 1167 [2018] [internal quotation marks omitted]; see People v. Pandajis, 147 A.D.3d 1469, 1470, 47 N.Y.S.3d 588 [4th Dept. 2017], lv denied 29 N.Y.3d 1084, 64 N.Y.S.3d 174, 86 N.E.3d 261 [2017] ). In any event, the record establishes that the court, upon learning of the potential conflict of interest, conducted an inquiry "to ascertain, on the record, [that defendant] had an awareness of the potential risks involved in his continued representation by the attorney and had knowingly chosen to continue such representation" ( People v. Lombardo, 61 N.Y.2d 97, 102, 472 N.Y.S.2d 589, 460 N.E.2d 1074 [1984] ; see generally People v. Gomberg, 38 N.Y.2d 307, 313, 379 N.Y.S.2d 769, 342 N.E.2d 550 [1975] ).
With respect to defense counsel's conversation with the court regarding a letter that defendant had sent to the court, defendant failed to demonstrate the " ‘absence of strategic or other legitimate explanations’ " for defense counsel's allegedly deficient conduct ( People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ), especially in light of the fact that "defendant [repeatedly] indicated [at trial] that he was satisfied with the legal services provided to him" ( People v. Terry, 55 A.D.3d 1149, 1150, 867 N.Y.S.2d 556 [3d Dept. 2008], lv denied 11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450 [2009] ). In addition, with respect to defense counsel's alleged failure to call a potentially exculpatory witness, we conclude that defense counsel made a reasonable strategic decision not to call the witness in question based on an assessment that the witness was not present at the scene until after the gunfight ended and thus would not have provided testimony refuting the People's theory that defendant fired a handgun during the gunfight (see generally People v. Grayson, 266 A.D.2d 740, 740–741, 698 N.Y.S.2d 773 [3d Dept. 1999], lv denied 94 N.Y.2d 920, 708 N.Y.S.2d 359, 729 N.E.2d 1158 [2000] ; People v. Castricone, 239 A.D.2d 929, 929, 661 N.Y.S.2d 802 [4th Dept. 1997], lv denied 90 N.Y.2d 1010, 666 N.Y.S.2d 105, 688 N.E.2d 1388 [1997] ). Viewing the evidence, the law, and the circumstances of this case in totality and as of the time of the representation, we conclude that defense counsel provided defendant with meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Finally, we conclude that the sentence is not unduly harsh or severe.