People v. Spencer

191 A.D.3d 1331

140 N.Y.S.3d 656

The PEOPLE of the State of New York, Respondent,

v.Marquille SPENCER, Defendant-Appellant.

870

KA 17-01363

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: February 5, 2021

ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT-APPELLANT.

CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, 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 nonjury 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]) arising from an October 26, 2015 shooting, and additionally convicting him upon a plea of guilty of attempted murder in the second degree ( §§ 110.00, 125.25 [1] ) arising from an August 25, 2015 shooting. We affirm.

Defendant contends that his conviction of murder in the second degree and criminal possession of a weapon in the second degree is based on legally insufficient evidence because the People failed to establish his identity as the perpetrator of the October 26, 2015 shooting. Viewing the evidence in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the evidence is legally sufficient to support the conviction of those crimes. The eyewitness testimony that defendant was the person who shot the deceased victim, in conjunction with other circumstantial evidence placing defendant at the scene of the shooting, is sufficient to establish defendant's identity as the perpetrator (see People v. Graham , 174 A.D.3d 1486, 1490, 105 N.Y.S.3d 756 [4th Dept. 2019], lv denied 34 N.Y.3d 1016, 114 N.Y.S.3d 759, 138 N.E.3d 488 [2019] ; 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] ). We reject defendant's contention that the eyewitness testimony is incredible as a matter of law (see People v. Williams , 81 A.D.3d 1281, 1282, 916 N.Y.S.2d 541 [4th Dept. 2011], lv denied 16 N.Y.3d 901, 926 N.Y.S.2d 36, 949 N.E.2d 984 [2011] ).

Furthermore, viewing the evidence in light of the elements of those crimes 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 People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; People v .Lostumbo , 182 A.D.3d 1007, 1008, 123 N.Y.S.3d 319 [4th Dept. 2020], lv denied 35 N.Y.3d 1046, 127 N.Y.S.3d 821, 151 N.E.3d 502 [2020] ). Although a different verdict would not have been unreasonable, we cannot conclude that the court " ‘failed to give the evidence the weight it should be accorded’ " ( People v. Ray , 159 A.D.3d 1429, 1430, 73 N.Y.S.3d 325 [4th Dept. 2018], lv denied 31 N.Y.3d 1086, 79 N.Y.S.3d 107, 103 N.E.3d 1254 [2018] ; see generally People v. Edwards , 159 A.D.3d 1425, 1426, 73 N.Y.S.3d 323 [4th Dept. 2018], lv denied 31 N.Y.3d 1116, 81 N.Y.S.3d 376, 106 N.E.3d 759 [2018] ). Ultimately, the court was in the best position to assess, inter alia, the credibility of the witnesses who testified that defendant was the perpetrator of the shooting, and we perceive no reason to reject the court's credibility determinations (see People v. Broomfield , 134 A.D.3d 1443, 1444, 21 N.Y.S.3d 781 [4th Dept. 2015], lv denied 27 N.Y.3d 1129, 39 N.Y.S.3d 110, 61 N.E.3d 509 [2016] ).

Defendant failed to preserve for our review his contention that the verdict is repugnant (see People v. Alfaro , 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280 [1985] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).

Furthermore, defendant's contention that counsel was ineffective based on a conflict of interest is unpreserved because he did not move for a new trial after learning, postverdict, that his trial counsel had accepted an offer of employment with the Erie County District Attorney's Office (ECDA) and would soon start working there (see CPL 470.05 [2] ; People v. Gaines , 277 A.D.2d 900, 900-901, 716 N.Y.S.2d 207 [4th Dept. 2000] ; cf. People v. Sears , 181 A.D.3d 1290, 1291-1292, 121 N.Y.S.3d 477 [4th Dept. 2020] ). Additionally, we note that defendant's contention "is based, in part, on matter appearing on the record and, in part, on matter outside the record and, thus, constitutes a ‘mixed claim of ineffective assistance’ " ( People v. Alvarracin , 148 A.D.3d 1041, 1042, 50 N.Y.S.3d 146 [2d Dept. 2017], lv denied 29 N.Y.3d 1075, 64 N.Y.S.3d 165, 86 N.E.3d 252 [2017] ). Where, as here, "the ‘claim of ineffective assistance of counsel cannot be resolved without reference to matter outside of the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety’ " ( People v. Wilson [Appeal No. 2], 162 A.D.3d 1591, 1592, 78 N.Y.S.3d 819 [4th Dept. 2018] [emphasis omitted]; see generally People v. Maffei , 35 N.Y.3d 264, 269-270, 127 N.Y.S.3d 403, 150 N.E.3d 1169 [2020] ). In any event, to the extent that the record permits review of defendant's contention that he was denied effective assistance based on defense counsel's conflict of interest following his postverdict acceptance of future employment with the ECDA, we conclude that it is unavailing (see People v. McCrone , 12...