Opinion
596 KA 20-00418
10-06-2023
The PEOPLE of the State of New York, Respondent, v. Raekwon WINSTON, Defendant-Appellant.
STEPHANIE R. DIGIORGIO, UTICA, FOR DEFENDANT-APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (DAWN CATERA LUPI OF COUNSEL), FOR RESPONDENT.
STEPHANIE R. DIGIORGIO, UTICA, FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (DAWN CATERA LUPI OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, MONTOUR, OGDEN, AND DELCONTE, 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, upon a jury verdict, of one count of murder in the second degree ( Penal Law § 125.25 [1] ) and two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]).
Defendant failed to preserve for our review his contention that his conviction is not supported by legally sufficient evidence because his general motion for a trial order of dismissal was not specifically directed at the alleged error raised on appeal (see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; People v. Sides , 215 A.D.3d 1250, 1251, 188 N.Y.S.3d 299 [4th Dept. 2023], lv denied 40 N.Y.3d 936, 194 N.Y.S.3d 771, 775, 215 N.E.3d 1212, 1216 [2023]; People v. Ford , 148 A.D.3d 1656, 1657, 50 N.Y.S.3d 226 [4th Dept. 2017], lv denied 29 N.Y.3d 1079, 64 N.Y.S.3d 168, 86 N.E.3d 255 [2017] ). In any event, we conclude that the evidence is legally sufficient and, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we further reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Defendant's contention that he was denied a fair trial by the admission of testimony that he was known to fire guns during parties is not preserved because he " ‘did not object on Molineux grounds to the admission of [the] testimony ... nor did he request a Ventimiglia hearing’ " ( People v. Kenney , 209 A.D.3d 1301, 1303-1304, 176 N.Y.S.3d 408 [4th Dept. 2022], lv denied 39 N.Y.3d 986, 181 N.Y.S.3d 194, 201 N.E.3d 811 [2022] ).
Contrary to defendant's further contention, he was not denied effective assistance of counsel by defense counsel's failure to object to details elicited about the victim's personal life. Although we agree with defendant that some of those details were irrelevant (see People v. Harris , 98 N.Y.2d 452, 490-491, 749 N.Y.S.2d 766, 779 N.E.2d 705 [2002] ), " ‘the single error by defense counsel in failing to object to [the] admission [thereof] was not so egregious as to deprive defendant of a fair trial’ " ( People v. Escobar, 181 A.D.3d 1194, 1198, 119 N.Y.S.3d 354 [4th Dept. 2020], lv denied 35 N.Y.3d 1044, 127 N.Y.S.3d 837, 151 N.E.3d 518 [2020] ; cf. People v. Salone , 188 A.D.3d 1742, 1743, 132 N.Y.S.3d 710 [4th Dept. 2020] ; see also People v. Concepcion , 128 A.D.3d 612, 614, 11 N.Y.S.3d 9 [1st Dept. 2015], lv denied 26 N.Y.3d 927, 17 N.Y.S.3d 90, 38 N.E.3d 836 [2015] ). Additionally, defendant was not denied effective assistance of counsel due to defense counsel's failure to make certain other objections or arguments (see People v. Williams , 98 A.D.3d 1234, 1236, 951 N.Y.S.2d 281 [4th Dept. 2012], lv denied 21 N.Y.3d 947, 968 N.Y.S.2d 10, 990 N.E.2d 144 [2013] ). We conclude that the evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant received meaningful representation (see People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
We reject defendant's contention that County Court erred in denying defendant's request for a missing witness charge for various individuals. A missing witness instruction is appropriate where the witness in question has knowledge material to the trial, would be expected to give noncumulative testimony favorable to the party against whom the charge is sought, and is available to that party (see People v. Smith , 33 N.Y.3d 454, 458, 104 N.Y.S.3d 572, 128 N.E.3d 649 [2019] ). The witnesses in question refused to cooperate with prosecutors, which rendered them outside the People's control (see People v. Daniels , 140 A.D.3d 1083, 1085, 34 N.Y.S.3d 161 [2d Dept. 2016], lv denied 28 N.Y.3d 970, 43 N.Y.S.3d 257, 66 N.E.3d 3 [2016] ; People v. Mariano , 36 A.D.3d 504, 505, 831 N.Y.S.2d 113 [1st Dept. 2007], lv denied 8 N.Y.3d 987, 838 N.Y.S.2d 490, 869 N.E.2d 666 [2007] ; People v. Baker , 174 A.D.2d 1019, 1020, 572 N.Y.S.2d 181 [4th Dept. 1991], lv denied 78 N.Y.2d 1073, 577 N.Y.S.2d 236, 583 N.E.2d 948 [1991] ).
Finally, we reject defendant's contention that the sentence is unduly harsh and severe.