Robbery conviction tossed, murder counts stand

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An underlying robbery charge, used to convict a Buffalo man of murder, has been thrown out by the Appellate Division, Fourth Department.

Now Brandon Harper’s lawyer is going to try to get two murder convictions dismissed because they are based on being committed during an attempted robbery. Rochester attorney David M. Abbatoy also plans to ask for a new trial on a third murder count, claiming statements his client made to police, admitting to the shooting, should not have been admitted at his trial by reason of preclusion.

“We plan on seeking leave (to the Court of Appeals) on the issue of whether or not deleting the robbery also impairs the government’s ability to go forward with murder first and felony murder, which are also based on that same robbery,” Abbatoy said. He is representing Harper on the appeal.

Abbatoy is also planning to bring a motion under Article 440 of Criminal Procedure Law on whether or not Harper’s statement, which was later recanted, should have automatically been precluded because it was not included in the prosecutor’s notice of evidence that he intended to offer it at trial.

The matter was prosecuted on appeal by Erie County Assistant District Attorney David A. Heraty, who presented arguments May 20. District Attorney Frank A. Sedita III could not be reached for comment.

An Erie County jury, in 2012, found Harper guilty of first-degree murder, two counts of second-degree murder and a single count of first-degree attempted robbery in connection with the July 1, 2011, shooting death of 35-year-old Joseph Hale of Batavia.

The sections of the law under which the first-degree murder charge (Penal Law 127 [1][a][vii]) and one of the second-degree murder counts (125.25 [3]) find a person guilty if the murder is committed during the commission of a robbery or attempted robbery or a host of other felony crimes not applicable in this case.

Harper appealed, claiming, among other things, the conviction was not supported by legally sufficient evidence, that the verdict was against the weight of the evidence, he had ineffective assistance of counsel and the court should not have allowed the testimony of the girlfriend of a co-defendant.

Abbatoy argued there was not enough evidence the killing was committed in furtherance of an attempted robbery or that there even was an attempted robbery.

According to the Buffalo News, Harper and Kevin Milon were approached by Hale about buying marijuana. They led him a mile away and tried to rob him when he pulled out his money. Harper, who initially admitted to firing shots, one of which killed Hale, later said Milon did it, while Milon pointed the finger at Harper when he accepted a deal and pleaded guilty to first-degree manslaughter.

The Appellate Division panel, citing People v. Chico, 90 NY2d 585, notes a person cannot be convicted of an offense solely on a confession unless there is proof the crime charged was actually committed, but corroboration to the defendant’s confession to the underlying crime is not needed to sustain first-degree murder and felony murder counts committed in the course of the underlying crime.

“The fact that the victim was found dead as the result of a gunshot wound is sufficient corroboration,” the panel wrote, citing People v. Hamilton, 121 AD2d 395. “The same analysis does not apply to the underlying felony itself. Where, as here, there is no corroboration of a defendant’s confession with respect to the underlying felony, that count of the indictment charging the defendant with the underlying felony must be dismissed.”

The panel consisted of Presiding Justice Henry J. Scudder and Justices Edward D. Carni, Joseph D. Valentino and Gerald J. Whalen.

They found there was no additional proof an attempted robbery had been committed and modified the judgment accordingly, dismissing that count of the indictment.

They also found ample circumstantial evidence existed to establish Harper was the shooter and found criminal intent to kill the victim existed, based on the fact multiple shots were fired at Hale.

The panel also rejected Harper’s ineffective assistance of counsel claims. Acknowledging there was no dispute that the use of Harper’s statement was not included in the pre-trial notice, the panel said it was not prepared to say defense counsel’s move to suppress the statement, which failed, was not a strategic decision, opposed to moving for preclusion. The justices said that issue would require a 440 motion, which Abbatoy plans to bring, so defense counsel has an opportunity to explain his strategy.

Abbatoy said the trial defense attorney failed to make the most direct route to making Harper’s statement inadmissible by seeking suppression instead of preclusion, the latter of which would have been automatic because of people’s failed notice. He could not recall who the trial defense attorney was.

He is planning to base his request for a new trial on the intentional murder count (Section 125.24 [1]) on the fact that the statement was not precluded.

“We’re going to continue to press for Mr. Harper’s rights on this because we believe there were some injustices involved in bringing about his conviction,” Abbatoy said.

The panel also rejected Harper’s contention that Milon’s girlfriend, whose apartment they went to the night of the killing, should not have been allowed to testify about statements Harper and Milon made immediately after the incident. It found that issue was not preserved, but lacked merit anyway because the statements were not elicited in a formal manner or by an investigator.

Harper was sentenced by Erie County Court Judge Michael L. D’Amico to 25 years to life in prison. He is housed at the Clinton Correctional Facility in Clinton County.

Milon was sentenced to 25 years in prison and is housed at the Elmira Correctional Facility in Chemung County.

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