DUPLEASIS, HILLERY M., PEOPLE v ( 2013 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1221
    KA 12-00122
    PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND VALENTINO, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    HILLERY M. DUPLEASIS, DEFENDANT-APPELLANT.
    THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Supreme Court, Erie County
    (Christopher J. Burns, J.), rendered January 13, 2012. The judgment
    convicted defendant, upon a jury verdict, of murder in the second
    degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously modified as a matter of discretion in the interest of
    justice and on the law by vacating the DNA databank fee and as
    modified the judgment is affirmed.
    Memorandum: Defendant appeals from a judgment convicting him
    following a jury trial of murder in the second degree (Penal Law §
    125.25 [3]). On a prior appeal, we reversed the judgment convicting
    defendant of, inter alia, the instant crime and granted a new trial
    based on our conclusion that “Supreme Court failed to comply with CPL
    310.30 during jury deliberations” (People v Dupleasis, 79 AD3d 1777,
    1778). Defendant was retried on only one count of murder in the
    second degree, and now contends that the evidence is legally
    insufficient to establish that he was the individual who shot the
    victim or that the homicide took place during a robbery or a burglary.
    As defendant correctly concedes, he failed to preserve that contention
    for our review (see People v Gray, 86 NY2d 10, 19), and we conclude in
    any event that it lacks merit. The testimony of defendant’s
    accomplice is legally sufficient to establish both facts (see
    generally People v Bleakley, 69 NY2d 490, 495), and that testimony was
    not incredible as a matter of law (see People v Shedrick, 104 AD2d
    263, 274, affd 66 NY2d 1015, rearg denied 67 NY2d 758; see also People
    v Santiago, 96 AD3d 1495, 1496, mod on other grounds 22 NY3d 900).
    Moreover, the accomplice’s testimony was sufficiently corroborated
    (see generally People v Reome, 15 NY3d 188, 191-192). “Although there
    is no direct evidence of defendant’s intent to commit the robbery [or
    burglary], it is well settled that ‘[i]ntent may be inferred from
    -2-                          1221
    KA 12-00122
    conduct as well as the surrounding circumstances’ ” (People v
    DeNormand, 1 AD3d 1047, 1048, lv denied 1 NY3d 626, quoting People v
    Steinberg, 79 NY2d 673, 682; see People v Kyler, 280 AD2d 346, 347-
    348, lv denied 96 NY2d 802). Inasmuch as the evidence is legally
    sufficient to support the conviction, we reject defendant’s contention
    that he was denied effective assistance of counsel based on defense
    counsel’s failure to move for a trial order of dismissal on more
    specific grounds. “It is well settled that [a] defendant is not
    denied effective assistance of trial counsel [where defense] counsel
    does not make a motion or argument that has little or no chance of
    success” (People v Wilson, 104 AD3d 1231, 1232, lv denied 21 NY3d
    1011, reconsideration denied 21 NY3d 1078 [internal quotation marks
    omitted]; see People v Webb, 60 AD3d 1291, 1292, lv denied 12 NY3d
    930).
    Viewing the evidence in light of the elements of the crime as
    charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
    reject defendant’s further contention that the verdict is against the
    weight of the evidence (see generally Bleakley, 69 NY2d at 495).
    Although an acquittal would not have been unreasonable, it cannot be
    said that the jury failed to give the evidence the weight it should be
    accorded (see generally id.).
    “By failing to object to the court’s ultimate Sandoval ruling,
    defendant failed to preserve for our review his further contention . .
    . that the ruling constitutes an abuse of discretion . . . In any
    event, the court’s Sandoval ruling did not constitute a clear abuse of
    discretion warranting reversal . . . The prior convictions in question
    were relevant to the credibility of defendant” (People v Tolliver, 93
    AD3d 1150, 1151-1152, lv denied 19 NY3d 968 [internal quotation marks
    omitted]; see People v Williams, 101 AD3d 1730, 1732, lv denied 21
    NY3d 1021). In our view, “the court’s ruling was a considered
    decision [that] took into account all relevant factors and further
    struck a proper balance between the probative value of the[ ]
    convictions on defendant’s credibility and the possible prejudice to
    him” (People v Poole, 79 AD3d 1685, 1686, lv denied 16 NY3d 862
    [internal quotation marks omitted]).
    Finally, we conclude that the sentence is not unduly harsh or
    severe but, as we noted in the prior appeal, “in view of the date on
    which the crimes were committed, the court erred in imposing the DNA
    databank fee” (Dupleasis, 79 AD3d at 1778; see People v Cooper, 77
    AD3d 1417, 1419, lv denied 16 NY3d 742). We therefore modify the
    judgment accordingly.
    Entered:   December 27, 2013                    Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 12-00122

Filed Date: 12/27/2013

Precedential Status: Precedential

Modified Date: 10/8/2016