| People v Myers |
| 2013 NY Slip Op 02781 [105 AD3d 1250] |
| April 25, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ArielMyers, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Roman Griffith of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Rensselaer County(Ceresia, J.), rendered September 13, 2010, upon a verdict convicting defendant of thecrimes of assault in the first degree and criminal possession of a weapon in the seconddegree.
On September 13, 2009, a fight broke out and crowds gathered at about 1:30 a.m.and again at 3:30 a.m. outside the victim's home, which was near the Griswold HeightsApartment Complex in the City of Troy, Rensselaer County. During the second fracas,the victim exited his home with a camera and started taking photographs of thoseinvolved. Profanity-laced comments were directed at the victim telling him to stop takingphotographs. A gun was then fired and a .25 caliber bullet struck the victim in the head,causing him to sustain permanent injuries whereby he will require around-the-clock carefor the remainder of his life. The ensuing investigation resulted in police soon focusingon defendant, who was eventually located nearly two weeks later hiding in a vacantapartment. He was indicted in October 2009 on one count of attempted murder in thesecond degree, two counts of assault in the first degree and two counts of criminalpossession of a weapon in the second degree. A jury acquitted defendant of attemptedmurder, but convicted him of one count of assault in the first degree and one count ofcriminal possession of a weapon in the second degree. County Court sentenced defendantto concurrent prison terms of 25 years for assault and 15 years for criminal possession ofa weapon, together with postrelease supervision. Defendant appeals.[*2]
Defendant initially challenges County Court'sMolineux ruling in which it permitted Robert Cruz to testify about seeingdefendant wielding a .25 caliber handgun about 2½ months before the subjectshooting. Although evidence of uncharged crimes or bad acts is not admissible to provecriminal propensity, nevertheless, one of the recognized exceptions permits suchevidence under some circumstances when identity is at issue and such proof is pertinentthereto (see People v Agina,18 NY3d 600, 603 [2012]; People v Chamberlain, 96 AD2d 959, 960[1983]). Here, the identity of the shooter was a key issue at trial and the fact thatdefendant previously had been seen brandishing the same caliber of handgun as was usedto commit the crime was relevant to the issue of identity (see People v Burnell, 89 AD3d1118, 1121 [2011], lv denied 18 NY3d 922 [2012]; People v Portee, 56 AD3d947, 950 [2008], lv denied 12 NY3d 820 [2009]; People v Rivera,281 AD2d 702, 703 [2001], lv denied 96 NY2d 805 [2001]; People vBrown, 266 AD2d 863, 863 [1999], lv denied 94 NY2d 860 [1999]). ThePeople established that this evidence was relevant to a material issue (see People v Cass, 18 NY3d553, 560 [2012]), and County Court did not abuse its discretion in determining thatthe probative value outweighed the danger of prejudice (see id.; People vBurnell, 89 AD3d at 1121). County Court further gave an appropriate limitinginstruction both when the proof was presented and in its charge to the jury (see People v Dorm, 12 NY3d16, 19 [2009]; People vReid, 97 AD3d 1037, 1038 [2012], lv denied 19 NY3d 1104 [2012]).
Next, defendant argues that County Court erred in allowing the People to introduceevidence purporting to show defendant's consciousness of guilt. Consciousness of guiltevidence is weak, but it "may be admissible so long as it is relevant, meaning that it has atendency to establish the fact sought to be proved—that defendant was aware ofguilt" (People v Bennett, 79 NY2d 464, 470 [1992]; see People vCintron, 95 NY2d 329, 332-333 [2000]). Defendant was found 13 days after theshooting hiding in a vacant apartment adjoining his sibling's residence. County Courtallowed the proof after finding that its probative value outweighed its prejudicial impact.The court later restricted the extent of the People's use in summation of theconsciousness of guilt evidence and charged the jury that such evidence is often of slightvalue and cannot be the sole basis for a finding of guilt. We are unpersuaded that the trialcourt's handling of this issue constituted reversible error (see People v Scharpf, 60AD3d 1101, 1103 [2009], lv denied 13 NY3d 862 [2009]; People vPrice, 135 AD2d 750, 750-751 [1987], lv denied 71 NY2d 972 [1988]).
The jury verdict is supported by legally sufficient evidence and is not against theweight of the evidence. When considering legal sufficiency, we view the evidence "in alight most favorable to the People and will not disturb a verdict as long as there is a 'validline of reasoning and permissible inferences which could lead a rational person to theconclusion reached by the jury' " (People v Blond, 96 AD3d 1149, 1151 [2012], lvdenied 19 NY3d 1101 [2012], quoting People v Bleakley, 69 NY2d 490, 495[1987]). The victim's wife testified that her husband went outside to take pictures of thecrowd, she heard someone state "this is what you get" followed by a single gunshot, andthe crowd scattered as she ran outside finding her husband bleeding from his head.Several witnesses reported seeing defendant, who was visible because of his height, inthe crowd and in the vicinity from where the gun was fired. One witness, FrankMcGivern, was watching from his nearby apartment and had previously seen defendantmany times as someone living in the neighborhood. McGivern identified defendant as theshooter. He recalled seeing the victim start taking pictures and people in the crowdyelling at him. McGivern stated that he watched as the tallest individual in the crowd puthis arm out and a flame appeared to come out of this individual's arm as a gun was fired.The people from the crowd then began running in various directions and McGivernvisually followed the tall individual who had apparently fired a [*3]gun. That individual ran near McGivern's window, and herecognized him as defendant. The evidence was legally sufficient to identify defendant asthe person who fired the gun and to otherwise support the convictions.
Where, as here, a different verdict would not have been unreasonable, our weight ofthe evidence analysis involves "weighing the probative force of the conflicting testimonyand considering the relative strength of the inferences to be drawn therefrom, whilegiving due deference to the jury's credibility determinations" (People v Callicut, 101 AD3d1256, 1259 [2012], lv denied 20 NY3d 1096 [2013]; see People v Romero, 7 NY3d633, 643-644 [2006]; People v Barringer, 54 AD3d 442, 443 [2008], lvdenied 11 NY3d 830 [2008]). Several of the People's witnesses had criminalhistories and there were inconsistencies in some testimony. Most notably, Cruz, thewitness who testified about seeing defendant previously wielding a .25 caliber handgun,had an extensive criminal record and acknowledged that he contacted police regardingdefendant in order to receive favorable treatment in a pending criminal matter. Further,although McGivern initially testified that he saw defendant pull a gun out of his waist,point and shoot across the street at the victim, upon closer questioning McGivernacknowledged that he could not see the shooter's face at the time the gun fired becausethe shooter's back was toward him (but he identified him as defendant as he fled thescene) and he did not see a gun (but saw a flame appear to come out of the shooter'sarm). These weaknesses in the People's case were amply brought out at trial andpresented credibility issues for the jury. Upon weighing and considering the evidence inthe record, we find that the jury's verdict is supported by the weight of the evidence (see People v Sharpe, 70 AD3d1184, 1185 [2010], lv denied 14 NY3d 892 [2010]).
Defendant contends that he was deprived of a fair trial by two statements made bythe prosecutor during summation. In commenting upon and explaining McGivern's delayin contacting police, the prosecutor indicated in a somewhat colorful fashion thatMcGivern faced the same fate as the victim if he contacted police. County Court directedthe prosecutor to "tone it down" and the statement, while inartful and embellished, wasotherwise a fair comment on McGivern's testimony that he did not immediately talk topolice because he had to live in the neighborhood. In a second challenged summationcomment, the prosecutor stated that police were all over the case and the people theyinterviewed all told them that defendant was involved. Counsel objected and CountyCourt immediately instructed the jury to disregard the statement and added that there wasno such evidence at trial. Although this comment by the prosecutor was improper,County Court promptly provided a curative instruction (see People v Hendrie, 24AD3d 871, 873 [2005], lv denied 6 NY3d 776 [2006]). Review of theprosecutor's summation does not reveal the level or frequency of misconduct as torequire reversal (see People vWeber, 40 AD3d 1267, 1268 [2007], lv denied 9 NY3d 927 [2007]; cf. People v Gorghan, 13AD3d 908, 909 [2004], appeal dismissed 4 NY3d 798 [2005]; People vTarantola, 178 AD2d 768, 770 [1991], lv denied 79 NY2d 954 [1992]).
Finally, defendant urges that sentencing him to the maximum period of incarcerationon both counts was harsh and excessive. Although he was 18 years old when hecommitted these crimes and had no prior criminal record, nonetheless, defendant'sactions were senseless and callous with catastrophic consequences for the 36-year-oldvictim as well as his wife and three children. Finding neither an abuse of discretion norextraordinary circumstances, we decline to disturb the sentence (see People v Smith, 41 AD3d964, 967 [2007], lv denied 9 NY3d 881 [2007]; People v Jennings, 20 AD3d777, 778 [2005], lv denied 5 NY3d 829 [2005]; People v Leader,285 AD2d 823, 825 [2001], lv denied 97 NY2d 756 [2002]).[*4]
Mercure, J.P. and Rose, J., concur.
Garry, J. (dissenting). I respectfully dissent, finding that the evidence of defendant'salleged previous possession of a .25 caliber gun should have been prohibited byapplication of the Molineux rule. As neither of the two required elements of the"identity" exception to this rule was shown by clear and convincing evidence, admissionof this testimony was an abuse of discretion as a matter of law. Considered in light of theother proof at trial, this error requires reversal.
The Molineux rule limits the admissibility of evidence of prior unchargedcrimes, as such evidence is so inherently prejudicial that it may induce a conviction forthe wrong reasons (see People vCass, 18 NY3d 553, 559 [2012]). The so-called "identity" or "modus operandi"exception is applied only "in limited circumstances" (People v Toland, 284AD2d 798, 803 [2001], lv denied 96 NY2d 942 [2001] [internal quotation marksand citation omitted]), and requires clear and convincing proof of both "theidentity of the defendant as the perpetrator of the prior crimes" and "that the modusoperandi of the crimes is so unique as to make the evidence highly probative"(People v Neu, 126 AD2d 223, 225 [1987], lv denied 70 NY2d 652[1987]; see People vLatimer, 24 AD3d 807, 809 [2005], lv denied 6 NY3d 849 [2006])."[A] [t]rial [j]udge who admits evidence of an uncharged crime on the issue of identityon less than clear and convincing proof of both a unique modus operandi and of[the] defendant's identity as the perpetrator of the crime abuses his [or her] discretion as amatter of law" (People v Robinson, 68 NY2d 541, 550 [1986]).
Where these elements are established by this standard, the probative value of theevidence must then be balanced against its potential for prejudice. This balancingrequires "special care," and mere reliance on other cases in which similar evidence hasbeen found to be admissible does not suffice (People v Wlasiuk, 32 AD3d 674, 677 [2006], lvdismissed 7 NY3d 871 [2006] [internal quotation marks and citation omitted]); a"case-specific" analysis is necessary (People v Westerling, 48 AD3d 965, 966 [2008]; accord People v Tyrell, 82AD3d 1352, 1355 [2011], lv denied 17 NY3d 810 [2011]). Here, CountyCourt merely recited the balancing standard in a conclusory manner. The record fails toreveal any analysis of the required elements (compare People v Burkett, 101 AD3d 1468, 1471 [2012],lv denied 20 NY3d 1096 [2013]; People v Tyrell, 82 AD3d at 1355),and—upon independent review—fails to support the admission of thisevidence.
The proof of defendant's alleged prior crime allowed here was the testimony of asingle witness, Robert Cruz, who described an incident that had occurred roughly2½ months earlier, in which he claimed to have seen defendant pull out a .25caliber gun at the same apartment complex where the victim was shot with a .25 caliberweapon. Cruz testified that on the earlier occasion, he and a number ofrelatives—several of whom he identified by name—were watching a fighton the grounds of the apartment complex, that Cruz recognized defendant among theother onlookers, that defendant pulled out a weapon and "[e]verybody started yelling,'[g]un' " and that "Street Crimes came up there with a camcorder, you know, the police,and I seen them come up there with a camcorder and stuff." Despite the testimonyregarding police involvement, the People did not substantiate Cruz's account withevidence that police had in fact responded to a fight or gun-related incident on thisoccasion, nor was there any testimony offered by Cruz's relatives or any other witnessessupporting his claim that "everybody" reacted to the gun (compare People vWandoloski, 128 AD2d 568, 569 [1987]).[FN1] There was no specific description of the gun, and there was no other evidence revealingthat defendant had ever possessed a gun or other weapon.
Cruz readily acknowledged that he belatedly reported this alleged incident to policeonly because he was hoping for favorable treatment in regard to a criminal charge thenpending against him, and only after he had telephoned several friends from jail to acquireinformation that he could use for this specific purpose; he later acknowledged at trial thatthe short sentence he subsequently received on the pending charge "more than likely"reflected consideration for his cooperation. Further, he described an extensive history ofprior crimes, incarcerations, plea bargains and other brushes with the law in a mannerthat called his veracity and credibility into significant question. While none of thisrendered Cruz's testimony incredible as a matter of law, his uncorroborated, self-servingclaims do not constitute clear and convincing proof that defendant perpetrated the earlieroffense (see People v Robinson, 68 NY2d at 550; People v Crawford, 4 AD3d748, 748-749 [2004], lv denied 2 NY3d 797 [2004]; compare People v Kindred, 60AD3d 1240, 1242 [2009], lv denied 12 NY3d 926 [2009]).
Further, there is no clear and convincing proof that the two incidents involved asufficiently unique modus operandi "to compel the inference that. . . defendant committed both" (People v Beam, 57 NY2d 241, 251[1982] [emphasis added]; accord People v Agina, 18 NY3d 600, 603 [2012]). Asabove, Cruz described the gun he had allegedly seen solely by its caliber. No witness sawthe gun that injured the victim, and that gun was never found. A firearms examinerreported that the shot that struck the victim could have been fired by any of a list ofweapons too long for publication.[FN2] The instant matter is thus readily distinguished from other cases where evidence ofpossession of a weapon has been admitted under the identity exception, as they haveinvolved weapons with distinctive characteristics (see e.g. People v Brown, 266AD2d 863, 863 [1999], lv denied 94 NY2d 860 [1999] [silver .380 caliberhandgun]; People v Sheriff, 234 AD2d 894, 895 [1996], lv denied 90NY2d 910 [1997] [chrome-plated handgun]) or possession on multiple occasions, or soclose in time to the charged crime as to give rise to an inference that the same weaponwas used (see e.g. People vPortee, 56 AD3d 947, 949-950 [2008], lv denied 12 NY3d 820 [2009][three witnesses said the defendant "routinely" carried weapon of caliber used in chargedoffense]; People v Rivera, 281 AD2d 702, 703 [2001], lv denied 96NY2d 805 [2001] [prior and subsequent possession of a firearm "resembling" the oneused in the charged crime]; People v Chamberlain, 96 AD2d 959, 960 [1983][the defendant possessed a similar weapon two weeks before charged crime andattempted to dispose of it immediately afterward]; see also People v Burnell, 89 AD3d 1118, 1121 [2011],lv denied 18 NY3d 922 [2012] [the defendant's prior possession of a .40 caliberweapon demonstrated his "familiarity with and access to weapons," although it was notdirectly linked with the .40 caliber weapon used in the charged crimes]).
The mere fact that defendant was allegedly seen with a .25 caliber weapon on an[*5]occasion over two months prior to the crime does notreveal any unique and distinctive modus operandi, nor a "distinctive repetitive pattern"(People v Arafet, 13 NY3d460, 466 [2009] [internal quotation marks and citation omitted]; see People vAllweiss, 48 NY2d 40, 47-48 [1979]). The only behavior described was the act ofpulling out a gun—there is nothing unique or distinctive about this act, standingalone—and the weapon was not fired during the alleged earlier incident.Defendant's mere presence in the same place twice is certainly not unusual, as otherpeople were also present on both occasions. There was simply no evidence that might beconsidered " 'so unique that the mere proof that . . . defendant hadcommitted a similar act would be highly probative of the fact that he committed the onecharged' " (People v Arafet, 13 NY3d at 466, quoting People v Condon,26 NY2d 139, 144 [1970]; seePeople v Pittman, 49 AD3d 1166, 1167 [2008]).
In the absence of clear and convincing proof of either of the two requiredelements—that defendant perpetrated the earlier uncharged incident or that he useda distinct modus operandi—Cruz's testimony was so lacking in probative valuethat it was necessarily outweighed by its potential for prejudice, and its admission was anabuse of discretion as a matter of law (see People v Robinson, 68 NY2d at549-550; see also People v Hudy, 73 NY2d 40, 56 [1988], abrogated on othergrounds 529 US 513 [2000]). Finally, although the other trial evidence upon whichdefendant was convicted was legally sufficient, it was not overwhelming. This error wasnot harmless, and the judgment of conviction should be reversed. Ordered that thejudgment is affirmed.
Footnote 1: County Court did notconduct a Molineux hearing, but relied upon a transcript of Cruz's testimonyfrom defendant's earlier mistrial on the same charges.
Footnote 2: This expert latertestified that approximately 40 weapons with varying characteristics could have beenused.