| People v Ross |
| 2012 NY Slip Op 05341 [97 AD3d 843] |
| July 5, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Romondo L. Ross, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Jeremy V. Murray of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Chemung County (Buckley, J.),rendered August 10, 2009, upon a verdict convicting defendant of the crimes of manslaughter inthe first degree, murder in the second degree and attempted murder in the second degree.
On the evening of July 31, 2008, Demetrius Molina and defendant were at a nightclub knownas Lando's in the City of Corning, Steuben County, when an altercation occurred betweendefendant and a group of men from South Carolina—one of whom, it appears, was datingdefendant's sister. A few hours later, and as the men from South Carolina were gathered outsidethe front door of an apartment located at 352 Woodlawn Avenue in the City of Elmira, ChemungCounty, defendant and Molina, together with certain of their friends, approached on foot. Shortlythereafter, multiple gunshots—emanating from Molina and defendant's group—rangout. Although no one at that address was struck by the gunfire, two of the bullets traveledapproximately 273 feet south of that location and penetrated the exterior wall of 347 WoodlawnAvenue. One of those bullets, in turn, struck and killed Maurice Davis, who was asleep in hissecond-floor master bedroom.
Defendant and Molina thereafter were indicted and charged with two counts of murder in thesecond degree, attempted murder in the second degree, two counts of criminal use of a firearm inthe first degree and criminal possession of a weapon in the second degree. Following [*2]separate jury trials, defendant and Molina each were convicted ofmanslaughter in the first degree (as a lesser included offense of intentional murder in the seconddegree), depraved indifference murder in the second degree and attempted murder in the seconddegree[FN*]and thereafter were sentenced to aggregate prison terms of 17½ years to life followed byfive years of postrelease supervision.
Upon Molina's appeal, we reversed his convictions of manslaughter in the first degree andmurder in the second degree under counts 1 and 2 of the underlying indictment, agreeing thatCounty Court erred in charging intentional murder and depraved indifference murder in theconjunctive (People v Molina, 79AD3d 1371, 1373-1374 [2010], lv denied 16 NY3d 861 [2011]). Defendant nowappeals, urging that very ground as a basis for reversal here.
Although defendant admittedly took no exception to the jury charge as given by CountyCourt or raised any objection to the accompanying verdict sheet, we nonetheless deem this to bean appropriate instance in which to exercise our interest of justice jurisdiction to take correctiveaction (see CPL 470.15 [6] [a]). Accordingly, for the reasons set forth in Molina,we reverse defendant's convictions of manslaughter in the first degree and murder in the seconddegree under counts 1 and 2 of the indictment and remit this matter to County Court for furtherproceedings.
As for defendant's challenge to the eavesdropping warrant, we are persuaded—basedupon the sworn affidavits submitted—that the People established both probable cause forthe warrant and that traditional investigatory measures either had been unsuccessfully attemptedor were unlikely to succeed (see People v Rodriguez, 274 AD2d 826, 828 [2000], lvdenied 95 NY2d 938 [2000]; People v Brown, 233 AD2d 764, 765-766 [1996], lvdenied 89 NY2d 1009 [1997]; People v Baker, 174 AD2d 815, 816-817 [1991],lv denied 78 NY2d 920 [1991]). Accordingly, County Court did not err in declining tosuppress the evidence obtained as a result thereof. Defendant's remaining contentions, to theextent not specifically addressed, have been examined and found to be lacking in merit.
Peters, P.J., Mercure, Rose and Lahtinen, JJ., concur. Ordered that the judgment is modified,as a matter of discretion in the interest of justice, by reversing defendant's convictions ofmanslaughter in the first degree and murder in the second degree under counts 1 and 2 of theindictment; matter remitted to the County Court of Chemung County (1) for a new trial on count2, and (2) without prejudice to the People to re-present the charge of manslaughter in the firstdegree to a grand jury; and, as so modified, affirmed.
Footnote *: Molina also was convicted ofthe various weapon offenses.