| People v Burnell |
| 2011 NY Slip Op 07742 [89 AD3d 1118] |
| November 3, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Hashim Burnell,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Herrick, J.), renderedNovember 15, 2006, upon a verdict convicting defendant of the crimes of murder in the first degreeand robbery in the first degree (three counts).
Defendant was indicted and charged with murder in the first degree, two counts of murder in thesecond degree and three counts of robbery in the first degree. The charges stemmed from an incidentthat occurred on May 5, 2005, during the course of which defendant, then two weeks shy of his 20thbirthday and while on parole from a prior felony conviction, allegedly robbed and fatally woundedTodd Pianowski (hereinafter the victim) and robbed the victim's girlfriend, Lauren Parker, at gunpoint inthe apartment the victim and Parker shared in the Town of Guilderland, Albany County. Although thePeople's first attempt to prosecute defendant ended in a mistrial, a second trial ensued and, at theconclusion thereof, a jury convicted defendant of murder in the first degree and three counts of robberyin the first degree. Defendant thereafter was sentenced as a second felony offender to, among otherthings, life imprisonment without the possibility of parole upon his conviction for murder in the firstdegree. This appeal by defendant ensued.
Defendant initially contends that the verdicts are not supported by legally sufficient evidence and,further, are against the weight of the evidence—arguing primarily that there is insufficientevidence to identify him as the perpetrator. We disagree.[*2]
Parker testified that upon arriving at her apartment shortly after2:00 p.m. on the afternoon in question, she encountered a man, whom she unequivocally identified attrial as defendant, standing in the kitchen and fiddling with a yellow plastic bag from a local grocerystore. Almost immediately, defendant put a handgun to her head and demanded that she give himeverything in the apartment—a reference she understood to mean any cash or drugs that mightbe present. Parker noticed the victim lying face down on the living room floor and, as she bent down toretrieve the demanded items from underneath a futon, observed blood on the victim's body. Defendantpointed to the victim and stated, "[D]o you see him[?] [D]o you see what he got for owing me[$1,500?]" Defendant then picked up the yellow grocery store bag, escorted Parker from theapartment and, while waiting for the elevator, went through her purse and removed her cash andidentification. Parker estimated that she observed defendant—face to face and in goodlighting—for approximately 5 to 10 minutes and thereafter provided a detailed physicaldescription of her assailant to the police. Parker's description matched defendant's generalcharacteristics, as well as the clothing he was photographed wearing when he was arrestedapproximately eight hours later—including the large, square diamond earrings previouslydescribed by Parker.
In addition to the foregoing, police subsequently recovered a backpack that defendant left with afriend on the day of the crimes, which contained, among other things, a yellow plastic grocery bag, abox of .40 caliber ammunition, a woman's purse and a small travel bag. Parker testified that she lastsaw the purse, which belonged to her, and the black travel bag, which belonged to the victim, under thefuton when she left the apartment on the morning in question. Additionally, a firearms examiner testifiedthat the .40 caliber bullets recovered at the scene were the same style of bullet, i.e., the same flat-nosebullet with the same jacketing material, as those contained in the box of ammunition and, further, thatthe expended shell casings recovered at the scene bore the same manufacturer's stamp as those presentin the box of ammunition found in the backpack linked to defendant.[FN1]Moreover, defendant's fingerprints were discovered on a coffee table in the victim's apartment, thevictim's fingerprints were found on a small plastic bag inside the backpack and security cameras at thevictim's apartment complex showed an individual matching defendant's description exiting the premiseswith a plastic bag around the time of the murder. There also was ample testimony detailing defendant'sfinancial difficulties in the weeks preceding the crimes, as well as his sudden influx of money immediatelyfollowing the crimes. Finally, defendant expressed an acute awareness of the crimes, as evidenced byhis postarrest statements wherein he inquired as to Parker's welfare and, with regard to the victim'sfamily, stated, "They probably want to kill me."
Viewing this evidence in the light most favorable to the People and according them the benefit ofevery inference that reasonably may be drawn therefrom (see People v Lowin, 71 AD3d 1194, 1196 [2010]), we find legallysufficient evidence to satisfy each and every element of the underlying crimes (see Penal Law§ 125.27 [1] [a] [vii]; § 160.15 [1], [2]). Further, [*3]despite whatever minor inaccuracies may have existed in Parker'sdescription of her assailant[FN2]and notwithstanding defendant's protestations of innocence, the plausible explanation offered for findinghis fingerprints at the scene and the other proof submitted upon his behalf, the record nonethelesscontains overwhelming evidence of defendant's guilt. Accordingly, the verdicts are not against theweight of the evidence.
Defendant next contends that County Court abused its discretion in admitting testimony regardingdefendant's history of drug sales, his recent financial difficulties and his possession of, and attempts tosell, a .40 caliber handgun in the weeks prior to the crimes, asserting that the probative value of suchproof was outweighed by its prejudicial effect. Again, we do not agree.
Generally speaking, evidence of uncharged crimes or prior bad acts may be admitted where theyfall within the recognized Molineux exceptions—motive, intent, absence of mistake,common plan or scheme and identity (see People v Molineux, 168 NY 264, 293[1901])—or where such proof is "inextricably interwoven with the charged crimes, provide[s]necessary background or complete[s] a witness's narrative" (People v Tarver, 2 AD3d 968, 969 [2003]; see People v Poquee, 9 AD3d 781,782 [2004], lv denied 3 NY3d 741 [2004]). Here, evidence regarding defendant's prior drugdealing activities not only provided necessary background information and explained the relationshipbetween defendant and the victim, but also, when viewed in the context of defendant's financialdifficulties, established defendant's motive for killing the victim (see People v Lee, 80 AD3d 877, 880 [2011], lv denied 16NY3d 832 [2011]; People v Smith, 63AD3d 1301, 1303 [2009], lv denied 13 NY3d 862 [2009]; People v Camarena,289 AD2d 7, 7 [2001], lv denied 97 NY2d 752 [2002]). We reach a similar conclusionregarding defendant's prior possession of a .40 caliber handgun, as such proof demonstrateddefendant's familiarity with and access to weapons (see People v Camarena, 289 AD2d at8)—even if the weapon described was not directly linked to the crimes for which defendant wason trial (compare People v Lee, 80 AD3d at 880; People v Williams, 28 AD3d 1005, 1008 [2006], lv denied 7NY3d 819 [2006]). As the probative value of such proof outweighed its prejudicial effect, we discernno error in its admission. Finally, defendant's claim that County Court erred in failing to givecontemporaneous limiting instructions regarding such proof is unpreserved for our review and, were weto reach this issue, we would find any error in this regard to be harmless given the overwhelmingevidence of defendant's guilt (see People vTyrell, 82 AD3d 1352, 1356 [2011], lv denied 17 NY3d 810 [2011]; People v De Fayette, 16 AD3d 708,709-710 [2005], lv denied 4 NY3d 885 [2005]; compare People v Westerling, 48 AD3d 965, 968 [2008]).
We reach a similar conclusion regarding defendant's assertion that County Court erred in admittingcertain fingerprint evidence without conducting a "complete and thorough" Frye hearing. Theprimary flaw in defendant's argument on this point is that the allegedly novel scientific technique atissue—a software program known as MoreHits—did not actually "match" the prints liftedfrom the crime scene with the known prints belonging to defendant and/or the victim. As the StatePolice investigator who conducted the fingerprint analysis explained, the MoreHits program allows anexaminer to digitally scan a fingerprint lift, enlarge it, adjust the contrast and isolate particular portions ofthe lifted print. Although such capabilities enable the examiner to focus in on areas where possiblepoints of comparison may exist, the software [*4]program itself doesnot make the "match." Rather, as the investigator repeatedly and unequivocally testified at trial, he madethe final matches by comparing defendant's exemplar to the fingerprints found on the coffee table in thevictim's living room and by comparing the victim's postmortem fingerprints to the print found on theinside of the small plastic bag subsequently discovered in the backpack. Specifically, the investigatortestified that he physically made these side-by-side comparisons utilizing a standard four-powermagnifier and a set of small pins to mark the individual points of identification. Thus, as it was theinvestigator—using familiar and established techniques—who made the actual matcheshere, we discern no need for a Frye hearing.
As for defendant's assertion that he was deprived of a fair trial due to comments made by theprosecutor during summation, the challenges now raised by defendant were not preserved byappropriate objection (see People vRobertson, 53 AD3d 791, 793 [2008], lv denied 11 NY3d 857 [2008]; People v Booker, 53 AD3d 697, 704[2008], lv denied 11 NY3d 853 [2008]), and we decline to exercise our interest of justicejurisdiction with respect thereto (see CPL 470.15 [6] [a]). Finally, we reject defendant's claimthat the sentence imposed was harsh and excessive. Although defendant was only 19 years old at thetime of his arrest, he already had amassed a substantial criminal record and, as noted previously, wason parole when he committed the underlying crimes. The record reflects that defendant, who expressedlittle remorse at sentencing, fired two gunshots at the victim—penetrating the victim's heart, liverand brain, tearing through the victim's vena cava and lacerating the blood vessels at the base of thevictim's brain—and thereafter held a gun to Parker's head, threatening her life if she failed tocomply with his demands. Under these circumstances, we cannot say that County Court abused itsdiscretion in imposing sentence, nor do we find any extraordinary circumstances to warrant modificationof the sentence in the interest of justice (see People v Hansen, 290 AD2d 47, 57 [2002],affd 99 NY2d 339 [2003]; People v Johnson, 277 AD2d 702, 707-708 [2000],lv denied 96 NY2d 831 [2001]). Defendant's remaining contentions, to the extent notspecifically addressed, have been examined and found to be lacking in merit.
Peters, J.P., Spain, Lahtinen and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Although the gun itself was notrecovered, a prosecution witness testified that defendant contacted him approximately two to threeweeks before the murder and asked if he knew of anyone who would be interested in purchasing a .40caliber handgun.
Footnote 2: For example Parker, who isapproximately four feet, nine inches tall, underestimated the height of her assailant.