SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1025 

KA 14-01504 

PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND CURRAN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

RAYSHAWN BETHANY, DEFENDANT-APPELLANT.

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BENJAMIN L. NELSON OF

COUNSEL), FOR DEFENDANT-APPELLANT.

RAYSHAWN BETHANY, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (KATHARINE

S. LAVIN OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Erie County Court (Michael L.

D’Amico, J.), rendered July 28, 2014. 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 affirmed.

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of murder in the second degree (Penal Law 

§§ 20.00, 125.25 [1]). Contrary to the contention of defendant in his

main and pro se supplemental briefs, we conclude that County Court did

not err in refusing to suppress the inculpatory statements he made to

a detective who was investigating the case. With respect to the first

statement, even assuming, arguendo, that defendant was in custody at

the time he was questioned by the detective, we note that the

detective testified that he read defendant his Miranda rights from a

card that was introduced into evidence, and began discussing the

homicide only after defendant indicated that he understood his rights,

but nonetheless wished to speak with the detective (see People v

Steiniger, 142 AD3d 1320, 1320). “Although defendant testified that

the [detective] did not read him his . . . Miranda rights, the court

was entitled to credit the [detective’s] testimony over that of

defendant” (id. at 1320-1321; see People v Orso, 270 AD2d 947, 947-

948, lv denied 95 NY2d 856; see generally People v Prochilo, 41 NY2d

759, 761).

Furthermore, the court credited the detective’s testimony that he

did not employ any coercion or threats of arrest or prosecution to

induce defendant to make the first statement (see People v Briggs, 124

AD3d 1320, 1321, lv denied 25 NY3d 1198). Contrary to the contention
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KA 14-01504 

in defendant’s pro se supplemental brief, although the detective told

defendant that the police were not “going to arrest him that day,”

such an assurance did not render the circumstances here inherently

coercive or overbearing (see People v Richardson, 202 AD2d 958, 958-

959, lv denied 83 NY2d 914). In addition, despite the fact that the

recording of the phone call between the detective and defendant’s

mother may have weighed against the detective’s credibility with

respect to the nature of any promises that he may have made to

defendant, we conclude that his testimony was not “ ‘unbelievable as a

matter of law, manifestly untrue, physically impossible, contrary to

experience, or self-contradictory’ ” (People v Bush, 107 AD3d 1581,

1582, lv denied 22 NY3d 954). Contrary to defendant’s contention in

his main and pro se supplemental briefs, “[t]he testimony of defendant

[and his witnesses] at the suppression hearing that the [first]

statement was coerced by [the detective] and thus was not voluntary

presented a credibility issue that the suppression court was entitled

to resolve against defendant” (People v McIver, 76 AD3d 782, 782-783,

lv denied 15 NY3d 894; see Briggs, 124 AD3d at 1321). The remaining

grounds raised in defendant’s pro se supplemental brief in support of

his contention that the first statement was involuntarily made are

without merit. Inasmuch as the court properly determined that

defendant’s first statement was voluntarily made to the detective, his

further contention that the second statement should have been

suppressed on the ground that it was tainted by the illegality of the

first statement is necessarily without merit (see People v Walker, 267

AD2d 778, 780, lv denied 94 NY2d 926).

We reject the further contention of defendant in his main and pro

se supplemental briefs that the evidence is legally insufficient to

establish his accessorial liability for the murder, i.e., that he

intentionally aided the shooters and “shared a ‘community of

purpose’ ” with them (People v Allah, 71 NY2d 830, 832; see Penal Law

§ 20.00; People v Scott, 25 NY3d 1107, 1109-1110). Viewing the

evidence in the light most favorable to the People (see People v

Contes, 60 NY2d 620, 621), we conclude that there is a valid line of

reasoning and permissible inferences enabling the jury to determine

beyond a reasonable doubt that defendant intentionally aided the

shooters in committing the crime and shared their intent to cause the

death of the victim (see People v Rossey, 89 NY2d 970, 972; People v

Pippins, 107 AD2d 826, 826-827). Contrary to defendant’s further

contention in his main and pro se supplemental briefs, 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 conclude that the

verdict is not against the weight of the evidence (see generally

People v Bleakley, 69 NY2d 490, 495). 

To the extent that the contention of defendant in his pro se

supplemental brief that he was denied effective assistance of counsel

at trial is based on matters outside the record on appeal, it must be

raised by way of a motion pursuant to CPL article 440 (see People v

Riley, 117 AD3d 1495, 1496, lv denied 24 NY3d 1088). We conclude on

the record before us that defendant received meaningful representation

(see People v Baldi, 54 NY2d 137, 147).
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KA 14-01504 

We reject the contention in defendant’s main brief that the court

erred in denying his request at sentencing for an adjournment and new

counsel in order to file a written motion to set aside the verdict

pursuant to CPL 330.30. Even assuming, arguendo, that defendant’s

complaints about defense counsel suggested a serious possibility of

good cause for a substitution of counsel requiring a need for further

inquiry, we conclude that the court afforded defendant the opportunity

to express his objections concerning defense counsel, and the court

thereafter reasonably concluded that defendant’s objections were

without merit (see People v Singletary, 63 AD3d 1654, 1654, lv denied

13 NY3d 839). Contrary to defendant’s further contention, upon our

review of the record, we conclude that defense counsel did not take a

position adverse to defendant at sentencing, and thus defendant was

not entitled to new counsel on that basis (see People v Jones, 261

AD2d 920, 920, lv denied 93 NY2d 972; see also People v Miller, 122

AD3d 1369, 1370, lv denied 25 NY3d 952; People v Collins, 85 AD3d

1678, 1679, lv denied 18 NY3d 993). Furthermore, to the extent that

defendant contends that he was denied effective assistance of counsel

at sentencing, we conclude that his contention lacks merit (see

Collins, 85 AD3d at 1679; Jones, 261 AD2d 920; see generally Baldi, 54

NY2d at 147). We reject defendant’s contention in his main brief that

the sentence is unduly harsh and severe.

Finally, we have reviewed defendant’s remaining contentions

raised in his pro se supplemental brief and conclude that none

warrants reversal or modification of the judgment.

Entered: November 18, 2016 Frances E. Cafarell

Clerk of the Court