SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

56 

KA 09-02148 

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND GORSKI, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

BRYON DRENNAN, DEFENDANT-APPELLANT.

 

TYSON BLUE, MACEDON, FOR DEFENDANT-APPELLANT. 

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (MELVIN BRESSLER OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Wayne County Court (Dennis M.

Kehoe, J.), rendered October 29, 2009. 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: On appeal from a judgment convicting him upon a jury

verdict of murder in the second degree (Penal Law § 125.25 [1]),

defendant contends that County Court erred in refusing to suppress his

statements to the police. We reject that contention. The evidence at

the suppression hearing establishes that, after the police questioned

defendant and his parents at their residence concerning the

whereabouts of the victim, defendant voluntarily agreed to continue

the interview at the police station and arranged his own

transportation there. While at the police station, defendant was not

handcuffed or otherwise restrained. The portion of the interview that

preceded the administration of Miranda warnings lasted only 30

minutes, during which time the questioning was largely investigatory

in nature. The record thus supports the court’s determination that

defendant’s statements made prior to the administration of Miranda

warnings were not the product of custodial interrogation (see People v

Copp, 78 AD3d 1548; People v Davis, 48 AD3d 1086, 1087, lv denied 10

NY3d 861; People v Lunderman, 19 AD3d 1067, 1068-1069, lv denied 5

NY3d 830). Defendant’s remaining statements were made after he waived

his Miranda rights, having acknowledged that he understood those

rights (see People v Morgan, 75 AD3d 1050, 1054, lv denied 15 NY3d

894).

Defendant failed to preserve for our review his contention

concerning the alleged legal insufficiency of the evidence inasmuch as

he failed to renew his motion for a trial order of dismissal after

presenting evidence (see People v Hines, 97 NY2d 56, 61, rearg denied
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KA 09-02148 

97 NY2d 678; People v Roundtree, 75 AD3d 1136, lv denied 15 NY3d 855). 

In any event, the evidence, viewed in the light most favorable to the

People (see People v Contes, 60 NY2d 620, 621), is legally sufficient

to establish that defendant caused the death of the victim and

intended to do so (see Penal Law § 125.25 [1]; see generally People v

Bleakley, 69 NY2d 490, 495). Further, 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 Bleakley, 69 NY2d at

495). Indeed, we conclude that an acquittal would have been

unreasonable, based upon the credible evidence presented at trial (see

People v Rickard, 71 AD3d 1420, 1422, lv denied 15 NY3d 809; see

generally Danielson, 9 NY3d at 348-349; Bleakley, 69 NY2d at 495). 

We reject the contention of defendant that he was denied

effective assistance of counsel. There is no support in the record

for defendant’s assertion that defense counsel failed to investigate

his case and, indeed, the record belies that assertion. With respect

to defendant’s contention that defense counsel failed to call expert

witnesses to rebut the expert testimony presented by the People, we

note that the court granted defense counsel’s request for an

adjournment to enable defense counsel to contact expert witnesses and

to conduct additional testing and, in addition, defense counsel also

sought authorization from the court to retain a psychiatrist to

evaluate defendant. Defense counsel’s ultimate decision not to call

an expert witness was thus a matter of strategy that cannot support

defendant’s contention that he was denied effective assistance of

counsel (see People v Bermudez, 38 AD3d 1325, lv denied 9 NY3d 840). 

In any event, “ ‘[d]efendant has not demonstrated that such [expert]

testimony was available, that it would have assisted the jury in its

determination or that he was prejudiced by its absence’ ” (People v

Jurgensen, 288 AD2d 937, 938, lv denied 97 NY2d 684). 

With respect to defendant’s contention that defense counsel was

ineffective in failing to afford defendant an opportunity to testify

before the grand jury, we note that defendant waived that contention

inasmuch as he withdrew his pro se motion to dismiss the indictment on

that ground after discussing the issue with substitute counsel. 

Defendant’s further contention that defense counsel allegedly failed

to challenge the validity of his confession based upon defendant’s

seizure disorder and/or medication issues and thus was ineffective on

that ground as well is unsupported by the record. In fact, defense

counsel specifically contended in support of defendant’s suppression

motion that defendant’s statements to the police were involuntary

based on defendant’s “physical and emotional condition.” Further, the

record establishes that the court was aware that defendant suffered

from epilepsy and was taking anti-seizure medication, and the record

is bereft of any evidence that defendant’s condition or medication had

any impact on the voluntariness or validity of his statements to the

police. It is well established that “[t]here can be no denial of

effective assistance of . . . counsel arising from [defense] counsel’s

failure to ‘make a motion or argument that has little or no chance of

success’ ” (People v Caban, 5 NY3d 143, 152). Based on our review of
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KA 09-02148 

the record, we conclude that “the evidence, the law, and the

circumstances of [this] case, viewed in totality and as of the time of

the representation, reveal that [defense counsel] provided meaningful

representation” (People v Baldi, 54 NY2d 137, 147). 

Finally, in light of the brutal nature of the crime and

defendant’s lack of remorse, it cannot be said that the sentence

imposed is unduly harsh or severe.

Entered: February 10, 2011 Patricia L. Morgan

Clerk of the Court