SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

81 

KA 10-00153 

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

BYRON HOWARD, DEFENDANT-APPELLANT.

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF

COUNSEL), FOR RESPONDENT. 

 

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

D’Amico, J.), rendered January 14, 2010. The judgment convicted

defendant, upon a nonjury verdict, of murder in the first degree (two

counts), murder in the second degree (four counts), burglary in the

first degree, arson in the third degree and criminal possession of a

weapon in the second degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by reversing those parts convicting

defendant of murder in the second degree under counts three and four

of the indictment and dismissing those counts and as modified the

judgment is affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon a nonjury verdict of, inter alia, two counts of murder in the

first degree (Penal Law § 125.27 [1] [a] [viii]; [b]) and four counts

of murder in the second degree (§ 125.25 [1], [3]). The evidence

established that defendant entered the home of his ex-girlfriend and

waited for several hours until she returned home with her current

boyfriend, at which time he shot them both and set her house on fire. 

Viewing the evidence in light of the elements of the crimes in this

bench trial (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). We reject the

contention of defendant that he was denied effective assistance of

counsel based on defense counsel’s failure to object to certain

hearsay testimony, his elicitation of hearsay testimony on crossexamination, or his failure to call a certain witness. Rather,

viewing the evidence, the law and the circumstances of this case, in

totality and as of the time of the representation, we conclude that

defendant received meaningful representation (see generally People v

Baldi, 54 NY2d 137, 147). 
-2- 81 

KA 10-00153 

We agree with defendant that County Court erred in allowing a

fire marshall to testify regarding six categories of motivation for

setting a fire, including revenge and crime concealment. The People

failed to demonstrate that those categories are “generally accepted in

the scientific community . . . or that the subject is beyond the

ordinary ken of the [trier of fact]” (People v Avellanet, 242 AD2d

865, 865, lv denied 91 NY2d 868). We conclude, however, that the

error is harmless inasmuch as the evidence of defendant’s guilt is

overwhelming and there is no significant probability that, absent the

error, the court would have acquitted defendant (see id.; see

generally People v Crimmins, 36 NY2d 230, 241-242). Defendant’s

further contention that the fire marshall improperly testified that he

eliminated all causes of the fire except the “human element” is not

preserved for our review (see CPL 470.05 [2]) and, in any event, that

contention is without merit (see generally People v Rivers, 18 NY3d

222). 

As the People correctly concede, however, those parts of the

judgment convicting defendant of murder in the second degree under

counts three and four of the indictment must be reversed and those

counts dismissed because they are inclusory concurrent counts of the

two murder in the first degree counts (see CPL 300.40 [3] [b]; People

v Pierre, 37 AD3d 1172, lv denied 8 NY3d 989; see generally People v

Miller, 6 NY3d 295, 300-303). We therefore modify the judgment

accordingly. In addition, we note that the certificate of conviction

incorrectly recites that defendant was convicted of criminal

possession of a weapon in the second degree under Penal Law § 265.03

(1), and it must therefore be amended to reflect that he was convicted

of that crime under Penal Law § 265.03 (3) (see People v Saxton, 32

AD3d 1286). We have considered defendant’s remaining contentions and

conclude that they are without merit.

Entered: February 10, 2012 Frances E. Cafarell

Clerk of the Court