Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered August 11, 2004, upon a verdict convicting defendant of the crimes of murder in the second degree, criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, criminal possession of a weapon in the second degree, reckless endangerment in the first degree, criminal possession of a weapon in the third degree (four counts), tampering with physical evidence, reckless endangerment in the second degree, petit larceny, criminal possession of stolen property in the fifth degree and menacing in the second degree.
Following the shooting death of a man who owed defendant money from drug deals, a grand jury handed up a 21-count indictment against defendant. A trial jury found him guilty of 14 counts. Defendant appeals.
The convictions were supported by legally sufficient evidence and not against the weight of the evidence. As for sufficiency, defendant only made a particularized motion to dismiss the counts charging criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, thus failing to preserve his argument as to any other counts (see People v Portee, 56 AD3d 947, 948-949 [2008]; People v Balram, 47 AD3d 1014, 1015-1016 [2008], lv denied 10 NY3d 859 [2008]). Several witnesses testified regarding defendant’s possession of crack cocaine and his exchange of crack cocaine for the use of a car, constituting legally sufficient
County Court’s Molineux ruling was proper. The evidence of uncharged crimes and bad acts was admitted not to show defendant’s propensity to commit the charged crimes, but to prove his identity, motive and intent and provide necessary background information (see People v Giles, 11 NY3d 495, 499 [2008]; People v Jeanty, 268 AD2d 675, 679 [2000], lv denied 94 NY2d 949 [2000]). Proof of defendant’s involvement with the drug trade was integral to show his relationship to the victim, namely as someone he supplied with drugs to sell on consignment. The victim’s failure to repay his debt for those drugs related to defendant’s motive to kill the victim. Proof of this motive also made it more likely that it was defendant who killed the victim, rather than the person who defendant testified was the shooter. While murder was the most serious count, defendant was also charged with possessing and selling crack cocaine and possessing weapons, making his position in the drug trade highly relevant. Considering the defense position that defendant was not the shooter and that the debt owed by the victim was too insubstantial to create a motive for defendant to kill him, the Molineux evidence fell within recognized exceptions and its probative value to the People’s case outweighed its prejudice to defendant (see People v Westerling, 48 AD3d 965, 966 [2008]; People v Williams, 28 AD3d 1005, 1007-1008 [2006], lv denied 7 NY3d 819 [2006]).
County Court did not abuse its discretion in reaching a
Defendant received effective assistance from his counsel. Several of the alleged deficiencies involve matters outside the record, making them unreviewable on appeal and more properly the subject of a CPL article 440 motion (see People v Sterling, 57 AD3d 1110, 1113 [2008]; People v Cruz, 53 AD3d 986, 986 [2008]). As the state of the law regarding intentional and depraved indifference murder was in flux at the time of defendant’s trial and not settled until at least several months later (see People v Payne, 3 NY3d 266, 269-272 [2004]), counsel was not ineffective for permitting County Court to charge those counts in the alternative. In any event, defendant was convicted of the intentional murder count so the jury never reached the alternative count. Counsel demanded and participated in several pretrial hearings, vigorously cross-examined the People’s witnesses, engaged in a thorough direct examination of defendant and made numerous objections and legal arguments. Under the circumstances, including defendant’s acquittal of seven charges and conviction of a lesser included crime on one other count, counsel provided him with meaningful representation (see People v Madison, 31 AD3d 974, 975 [2006], lv denied 7 NY3d 868 [2006]).
Peters, J.P, Spain, Rose and McCarthy, JJ., concur. Ordered that the judgment is modified, on the law, by directing that defendant’s sentences for one count of criminal possession of a weapon in the second degree and two counts of criminal possession of a weapon in the third degree under counts five, six and seven of the indictment shall run concurrently with each other, and, as so modified, affirmed.