People v. HarperPeople v. Harper
Appeal from a judgment of the Erie County Court (Michael L. D‘Amico, J.), rendered September 4, 2012. The judgment convicted defendant, upon a jury verdict, of murder in the first degree, murder in the second degree (two counts) and attempted robbery in the first degree.
It is hereby ordered that thе judgment so appealed from is modified as a matter of discretion in the interest of justice and on the law by reversing the conviction of attempted robbery in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment.
Memorandum: On appeal from a judgment convicting him, following a jury trial, of one count of murder in the first degree (
“A person may not be convicted of any offense solely upon evidence of а confession or admission made by him [or her] without additional proof that the offense charged has been committed” (
The same analysis does not apply to the underlying felony itself. Where, as here, there is no corroboration of a defendant‘s confession with respect to the underlying felony, that count of the indictment charging the defendant with the underlying felоny must be dismissed (see People v Velez, 122 AD2d 178, 178-179 [1986], lv denied 70 NY2d 658 [1987]; see also Davis, 46 NY2d at 781; Murray, 40 NY2d at 330-331). Here, as in Velez, there was no “additional proof that the offense [of attempted robbery] ha[d] been committed” (id. at 178, quoting
Contrary to defendant‘s further contention, the verdict is not against the wеight of the evidence on the issues of his identity
Defendant contends that he was denied effective assistance of counsel based on defense counsel‘s failure to move to preclude defendant‘s written confession and failure to raise certain contentions in moving to suppress defendant‘s statements. We reject that contention. There is no dispute that neither the initial
Defendant further contends in his main brief and his pro se supplemental brief that defense counsel was ineffective in failing to pursue suppression of the post-Miranda statements on thе grounds that there was a single, continuous chain of events
Defendant contends that County Court erred in its charge to the jury when it stated on one occasion that the murder had to ocсur in the course of or in furtherance of the attempted robbery. Defendant failed to object to that misstatement, however, and failed to preserve for our review his contentiоn that the misstatement lessened the People‘s burden of proof (see Gray, 86 NY2d at 19; People v Roman, 190 AD2d 831, 831 [1993], aff‘d 83 NY2d 866 [1994]). In any event, defendant‘s contention lacks merit. The court repeatedly instructed the jury that the murder had to occur in the course of and in furtherance of the attempted robbery, and we conclude that “the charge as a whole adequately conveyed the required standard” (People v Samuels, 99 NY2d 20, 26 [2002]).
Defendant wаived any challenge to the court‘s annotation of the verdict sheet inasmuch as he requested the annotation (see People v Cipollina, 94 AD3d 1549, 1550 [2012], lv denied 19 NY3d 971 [2012]). In addition, by failing to object to the prosecutor‘s summation, defendant failed to preserve for our review his contention that he was denied a fair trial when the prosecutor misstated the law concerning felony murder (see People v Waterford, 124 AD3d 1246, 1247-1248 [2015]; People v Goodman, 190 AD2d 862, 862 [1993], lv denied 81 NY2d 971 [1993]). In any event, that cоntention lacks merit. “To the extent that a portion of the prosecutor‘s summation could be viewed as containing a misstatement of law, . . . any prejudice was avoided by the court‘s instructions, which the jury is presumed to have followed” (People v Padin, 121 AD3d 628, 629 [2014]; see Waterford, 124 AD3d at 1247-1248).
Contrary to defendant‘s contention, the court properly allowed the girlfriend of a codefendant to testify concerning statements mаde by defendant and the codefendant immediately after the incident. Those statements qualified as both excited utterances (see People v Johnson, 1 NY3d 302, 305-306 [2003]; People v Edwards, 47 NY2d 493, 497 [1979]), and adoptive admissions (see People v Campney, 94 NY2d 307, 311-312 [1999]). Defendant further contends that the admission of the сodefendant‘s statements made to and in front of the codefendant‘s girlfriend violated defendant‘s right of confrontation. That contention is not preserved for our review, and such a contention, whether based on Bruton v United States (391 US 123 [1968]) or Crawford v Washington (541 US 36 [2004]), requires preservation (see People v Kello, 96 NY2d 740, 744 [2001]; People v Gilocompo, 125 AD3d 1000, 1001 [2015]). In any event, we have reviewed defendant‘s contention and conclude that it lacks merit. There was no Bruton violation where, as here, defendant and the codefendant were not tried jointly (see People v Baker, 26 NY2d 169, 172-173 [1970]), and there was no Crawford violation because the statements were “neither elicited in a formal manner nor elicited by an investigator” (People v Paul, 25 AD3d 165, 170 [2005], lv denied 6 NY3d 757 [2005]).
Finally, we agree with defendant that the certificate of conviction incorrectly recites that he was convicted of murder in the first degree as a “murder of a police officer.” The certificate of cоnviction must therefore be amended to reflect that he was convicted under
All concur except Sconiers, J., who is not participating. Present — Scudder, P.J., Carni, Sconiers, Valentino and Whalen, JJ.