Opinion
KA 01-01779.
Decided April 30, 2004.
Appeal from a judgment of the Supreme Court, Erie County (Joseph S. Forma, J.), rendered July 26, 2001. The judgment convicted defendant, upon a jury verdict, of murder in the second degree, robbery in the first degree (two counts) and criminal possession of a weapon in the third degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (PAUL J. WILLIAMS, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25), two counts of robbery in the first degree (§ 160.15 [1], [2]), and criminal possession of a weapon in the third degree (§ 265.02 [1]). We reject the contention of defendant that he was denied effective assistance of counsel because counsel failed to move to sever his trial from that of his codefendant. The failure to make a particular pretrial motion does not by itself constitute ineffective assistance of counsel ( see People v. Paige, 289 A.D.2d 872, 873, lv denied 97 N.Y.2d 759) and, here, defendant failed to show that he suffered the requisite prejudice because of counsel's failure to move for severance ( see People v. Ruger, 288 A.D.2d 686, 687, lv denied 97 N.Y.2d 728, 733). Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation ( see People v. Baldi, 54 N.Y.2d 137, 147). Here, as in the appeal of the codefendant, "[t]he defense of defendant did not conflict with that of his codefendant, inasmuch as both denied having the requisite intent to commit the robbery" ( People v. DeNormand, 1 A.D.3d 1047, 1049; see People v. Espinal, 220 A.D.2d 276, lv denied 87 N.Y.2d 900). In addition, any Bruton violation is harmless error because the codefendant's statement "was merely cumulative of other evidence properly admitted at trial" ( People v. Eldridge, 221 A.D.2d 966, 967, lv denied 87 N.Y.2d 1019; see People v. Pugh, 236 A.D.2d 810, 811-812, lv denied 89 N.Y.2d 1099).
Defendant next contends that, although Supreme Court properly determined that the photo array was unduly suggestive, it erred in furtherdetermining that the witness had an independent basis for his in-court identification of defendant. Even assuming, arguendo, that defendant did not waive that contention by agreeing to allow the prosecutor to establish that the witness had known defendant for 4 or 5 years, we conclude that it is withoutmerit. Contrary to defendant's contention, the testimony of the police investigator at the Wade hearing establishes that the witness had an independent basis for his in-court identification ( see People v. Beltran, 281 A.D.2d 934, 935, lv denied 96 N.Y.2d 898, 903; People v. Brennan, 261 A.D.2d 914, 915, lv denied 94 N.Y.2d 820; People v. Cole, 241 A.D.2d 946, 946-947, lv denied 90 N.Y.2d 903). The court properly credited the police investigator's testimony, even though it was based on hearsay ( see generally CPL 710.60; People v. Edwards, 95 N.Y.2d 486, 491; People v. Espinal, 262 A.D.2d 245, lv denied 93 N.Y.2d 1017; People v. Gordon, 200 A.D.2d 634, lv denied 83 N.Y.2d 911).
Defendant further contends that the court erred in denying his request for a missing witness charge. We rejected that contention on the appeal of the codefendant on the ground that he failed to show that the testimony of that witness would have been favorable to the People ( see DeNormand, 1 A.D.3d at 1049), and we reach the same conclusion with respect to defendant herein. In addition, defendant failed to preserve for our review his contention regarding the court's circumstantial evidence charge ( see CPL 470.05), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see DeNormand, 1 A.D.3d at 1049). We further reject the contention of defendant that the court violated his right to be present at a sidebar conference conducted during jury selection. "Defendant failed to come forward with substantial evidence to rebut the presumption of regularity that attaches to all criminal proceedings" ( People v. Andrew, 1 N.Y.3d 546, 547). Finally, the sentence is neither unduly harsh nor severe.