People v. Roundtree

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: CARNI
• Citation: People v. Roundtree, 904 N.Y.S.2d 636, 75 A.D.3d 1136 (N.Y. App. Div. 2010)
• Decision Date: 09 July 2010
• Parties: The PEOPLE of the State of New York, Respondent, v. Lamar J. ROUNDTREE, Defendant-Appellant.

904 N.Y.S.2d 636

75 A.D.3d 1136

The PEOPLE of the State of New York, Respondent,

v.Lamar J. ROUNDTREE, Defendant-Appellant.

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

July 9, 2010.

Easton Thompson Kasperek Shiffrin LLP, Rochester (Donald M. Thompson of Counsel), for Defendant-Appellant.

Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1] ), criminal possession of a weapon in the second degree (§ 265.03 [former (2) ] ), and criminal possession of a weapon in the third degree (§ 265.02 [former (4) ] ). Defendant failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence inasmuch as he failed to renew his motion for a trial order of dismissal after presenting evidence ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396; People v. Pearson, 26 A.D.3d 783, 810 N.Y.S.2d 267, lv. denied 6 N.Y.3d 851, 816 N.Y.S.2d 757, 849 N.E.2d 980). In any event, we reject that contention ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Moreover, 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), we conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Defendant's further contention concerning the legal sufficiency of the evidence before the grand jury is not reviewable on an appeal from an ensuing judgment based upon legally sufficient trial evidence ( People v. Lee, 56 A.D.3d 1250, 1251, 868 N.Y.S.2d 453, lv. denied 12 N.Y.3d 818, 881 N.Y.S.2d 26, 908 N.E.2d 934; see CPL 210.30 [6] ).

Contrary to the contention of defendant, he was not denied effective assistance of counsel ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). In view of our determination that the evidence is legally sufficient to support the conviction, defendant was not denied effective assistance of counsel based on defense counsel's failure to renew the motion for a trial order of dismissal inasmuch as he failed to show that the motion, "if made, would have been successful" ( People v. Marcial, 41 A.D.3d 1308, 1308, 837 N.Y.S.2d 815, lv. denied 9 N.Y.3d 878, 842 N.Y.S.2d 790, 874 N.E.2d 757; see People v. Bassett, 55 A.D.3d 1434, 1437-1438, 866 N.Y.S.2d 473, lv. denied11 N.Y.3d 922, 874 N.Y.S.2d 7, 902 N.E.2d 441). With respect to the remaining alleged shortcomings of defense counsel, we conclude that defendant has failed to demonstrate the absence of strategic or other legitimate explanations' for [those] alleged shortcomings ( People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584).

We agree with defendant, however, that the sentences imposed for criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree must run concurrentlywith the sentence imposed for murder in the second degree, and we therefore modify the judgment accordingly. Pursuant to Penal Law § 70.25(2), "[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in...