People v. Barboni

On appeal from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [4] [depraved indifference murder]) and manslaughter in the first degree (§ 125.20 [4]), defendant contends that he was denied effective assistance of counsel during jury selection. We reject that contention. “The alleged error[ ] in defense counsel’s representation [during jury selection is a] mere disagreement! ] with defense counsel’s . . . tactics, and defendant has failed to establish ‘the absence of strategic or other legitimate explanations’ for defense counsel’s alleged shortcomings” (People v Martin, 79 AD3d 1793 , 1793 [2010], lv denied 16 NY3d 861 [2011], quoting People v Rivera, 71 NY2d 705 , 709 [1988]).

We also reject defendant’s challenge to the legal sufficiency of the evidence supporting the conviction of depraved indifference murder (see generally People v Bleakley, 69 NY2d 490 , 495 [1987]). Contrary to the contention of defendant, the evidence is

The record further establishes that the child’s suffering yielded an apathetic response from defendant. Around 8:00 p.m. on the night of the child’s death, defendant telephoned his girlfriend, who was the mother of the child, and informed her that she needed to come home because the child was not breathing. When the mother arrived approximately two minutes later, she ran past defendant, who was in the kitchen of her apartment and said to the mother that “he didn’t know what happened.” When the mother reached the child’s crib on the second floor of the apartment, she observed that the child was blue and not breathing. Although defendant did not seek medical assistance for him, the child was transported to a hospital, where he was pronounced dead at 8:20 p.m. The evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620 , 621 [1983]), is also legally sufficient to support the conviction of manslaughter in the first degree (see generally Bleakley, 69 NY2d at 495 ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342 , 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495 ).

We also conclude that there is no merit to defendant’s contention that County Court erred in refusing to suppress certain physical evidence on the ground that it was illegally seized, inasmuch as defendant and the attorney who represented him when he was questioned by the police consented to the seizure