People v. Fowler

147 A.D.2d 966, 537 N.Y.S.2d 714, 1989 N.Y. App. Div. LEXIS 1375

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 1989
• Status: Published

Opinion

— Judgment unanimously affirmed. Memorandum: On appeal from a judgment, following a bench trial, convicting defendant of one count of intentional murder and two counts of felony murder, several claims are raised by assigned counsel and by defendant, pro se, but none requires reversal and only a few deserve comment. The claim that defendant’s statements to the police following his arrest were taken in violation on his right to counsel is not supported by the evidence found credible by the hearing court (see, People v Prochilo, 41 NY2d 759, 761; People v Pittman, 127 AD2d 964, lv denied 70 NY2d 653). The court’s Sandoval ruling was not an abuse of discretion (People v Bennette, 56 NY2d 142; People v Shields, 46 NY2d 764, 765). On this record we cannot conclude that defendant was denied meaningful representation (see, People v Baldi, 54 NY2d 137). We also reject defendant’s challenge to the court’s finding that he did not establish the affirmative defense to felony murder. Although defendant did not himself commit the murder, was not armed and had no reason to believe his companion was armed, the court could find on this record that defendant did have reasonable ground to believe that his companion would engage in conduct which could result in death or serious physical injury to the victim (see, Penal Law § 125.25 [3] [d]; People v Salgado, 130 AD2d 960, 961, lv denied 70 NY2d 754). Thus, defendant’s convictions for felony murder should be affirmed. We have considered the remaining claims raised and find that each one lacks merit. (Appeal from judgment of Monroe County Court, Celli, J. — murder, second degree.) Present — Callahan, J. P., Doerr, Green,. Pine and Lawton, JJ.