People v. DavisPeople v. Davis
Except for an argument concerning the unlawful remaining element of burglary, which we find unavailing, defendant‘s legal sufficiency claims are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. We also find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). With regard to the intentional murder conviction, the viciousness and extent of defendant‘s attack on his elderly grandmother, accompanied by the surrounding circumstances, support the inference that defendant intended to beat her to death. With regard to the felony murder conviction and its underlying crime of burglary, the evidence warranted the inference that defendant unlawfully remained in the victim‘s apartment with the intent to commit a crime (see People v Lewis, 5 NY3d 546, 552 [2005]).
The police did not violate defendant‘s right to counsel when they questioned him about the murder. Even assuming that defendants’ right to counsel had attached on a pending criminal trespass case, the murder was not “so closely related transactionally, or in space or time” to an earlier trespass he committed, upon which an arrest warrant had issued, “that questioning on the unrepresented matter would all but inevitably elicit incriminating responses regarding the matter in which there had been an entry of counsel” (People v Cohen, 90 NY2d 632, 638 [1997]). The trespass occurred nearly a month before the murder, at a different location. The fact that the victim‘s refusal to pay defendant‘s fine for the trespass may have provided a motive for the murder did not make the two crimes so related that representation on the trespass precluded defendant from effectively waiving his right to counsel regarding the murder (see e.g. People v Tucker, 30 AD3d 312, 313 [1st Dept 2006], lv denied 7 NY3d 818 [2006]).
The court properly exercised its discretion in declining to order a
The court providently exercised its discretion in admitting images and descriptions of pornography websites that defendant visited on the victim‘s computer shortly after the murder. In his statement to the police, defendant claimed that the death was accidental and that he was grieving for the loss of his grandmother in the period following her death. The evidence at issue tended to refute that claim (see generally People v Aska, 91 NY2d 979, 981 [1998]), and we do not find that it was so inflammatory as to create undue prejudice.
The People, who originally obtained an indictment charging only second-degree manslaughter, properly re-presented the case to the grand jury for the purpose of having it consider additional, more serious charges. Initially, we note that we have examined the grand jury minutes in camera, and that they confirm that the first grand jury was nevér asked to vote on the murder and burglary charges. In any event, regardless of whether court authorization under
Defendant failed to preserve his claim that the resubmission application should not have been made and determined on an ex parte basis, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits (see e.g. People v Martinez, 141 AD3d 429 [1st Dept 2016], lv denied 28 NY3d 972 [2016]).
Defendant‘s ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). Accordingly, since defendant has not made a
We perceive no basis for reducing the sentence. Concur—Renwick, J.P., Mazzarelli, Manzanet-Daniels, Feinman and Webber, JJ.