| People v Maschio |
| 2014 NY Slip Op 03551 [117 AD3d 1234] |
| May 15, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJose A. Maschio, Appellant. |
R. Graham McNamara, Glenville, for appellant.
James E. Conboy, District Attorney, Fonda (Pamela A. Ladd of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Montgomery County(Catena, J.), rendered September 1, 2010, upon a verdict convicting defendant of thecrimes of criminal possession of a weapon in the second degree (two counts), criminalpossession of a weapon in the third degree and reckless endangerment in the seconddegree.
In November 2009, two cars drove back and forth in front of a tavern in the City ofAmsterdam, Montgomery County, while a person or persons therein fired multiple shotsat the tavern and people standing outside. Witnesses reported that some of the shots werefired by a person wearing a distinctive yellow hat; defendant, who had been in the tavernwearing a yellow hat earlier that evening, was apprehended after the shooting, wearing ayellow hat and riding with codefendant Michael Bianca in a car that matched thedescription of one of the involved vehicles. Defendant and Bianca were thereafterindicted for various crimes. Following a joint jury trial, defendant was convicted ofcriminal possession of a weapon in the second degree (two counts), criminal possessionof a weapon in the third degree and reckless endangerment in the seconddegree.[FN*]
Defendant was sentenced to an aggregate prison term of 12 years. He appeals, andwe [*2]affirm.
We reject defendant's claim that the admission at trial of a statement given to policeby Bianca violated defendant's right to confront witnesses and deprived him of a fair trial(see generally Crawford v Washington, 541 US 36 [2004]). According to thestatement, which had been redacted to remove references to defendant, Bianca and threeother men went to the tavern earlier that evening and, following an altercation with otherbar patrons, left together in Bianca's black Lexus. In the vehicle, there was "yelling backand forth" and discussion of obtaining a gun; Bianca allegedly told the others that hewanted nothing to do with such a plan, dropped off two of the men at their black car andthen drove back to the tavern with the third man. As they approached the bar, a blackvehicle allegedly came up behind Bianca's car. Bianca stated that he heard gunfire andattempted to drive away, but "somehow ended up back in the cross fire three more timesbefore [he] took it upon [himself] to get [them] out of there."
A defendant's right to confront witnesses is violated by the admission of "the faciallyincriminating confession of a nontestifying codefendant" (Richardson v Marsh,481 US 200, 207 [1987]; see generally Bruton v United States, 391 US 123,135-136 [1968]); however, no such violation occurs where, as here, the codefendant'sstatement incriminates the defendant only in light of other evidence produced at trial (see People v Pagan, 87 AD3d1181, 1184 [2011], lv denied 18 NY3d 885 [2012]; People v Lewis, 83 AD3d1206, 1208-1209 [2011], lv denied 17 NY3d 797 [2011]). Nor did the use ofplural pronouns such as "we" and "they" in the statement necessarily indicate anyinvolvement by defendant, as the jury could have readily understood these as referencesto the other men that Bianca said were present (see People v Pagan, 87 AD3d at1184-1185; People v Timberlake, 300 AD2d 219, 219-220 [2002], lvdenied 99 NY2d 633 [2003]). Accordingly, the statement was admissible, anddefendant's rights under the Confrontation Clause were not violated by the People'sarguments that drew inferences about his participation by linking the statement withother trial evidence (see Peoplev Hernandez, 89 AD3d 1123, 1126 [2011], lv denied 20 NY3d 1099[2013]).
Defendant's convictions were not against the weight of the evidence. Witnessestestified that defendant—wearing the aforesaid yellow hat—was present inthe tavern on the night of the shooting with Bianca and three other men, all of whom leftin a black Lexus after a dispute with other customers. About half an hour later, shotswere fired from two cars, one of which, according to witnesses, was a black Lexus drivenby Bianca that contained a shooter in a yellow hat. Witnesses saw gunfire flashes comingfrom the Lexus, and people on the sidewalk returned fire. Later that night, defendant andBianca were stopped in a black Lexus driven by a third man; police did not find aweapon or other gun-related evidence in the Lexus, but did find body damage consistentwith having been struck by gunfire, and the vehicle's paint matched paint chips foundduring forensic examination of the crime scene. Bianca later guided police to anothervehicle that matched witness descriptions of the second car, had a 9 mm bullet lodged inthe door and contained an unfired .40 caliber cartridge, a firearm cleaning rod and astorage space that, according to police, had been altered in a manner consistent withhiding a weapon. Multiple .40 caliber shell casings were found at the crime scene,distributed in a pattern consistent with having been fired from a moving vehicle orvehicles, and 9 mm shell casings were found near the tavern in a pattern suggesting thatthey had been fired from a stationary position.
[*3] Defendant points to various inconsistencies in thewitness testimony, such as details about the yellow hat, whether the cars were parked orstationary during the incident and whether the occupants of the Lexus switched hats; hefurther relies on the absence of gun-related evidence in the Lexus, the presence of suchevidence in the other vehicle and the fact that negative results were obtained in gunshotresidue testing of his hands, Bianca's hands and those of the third occupant of the Lexus.However, there was testimony that such test results could have been affected by themovement of the vehicle from which the shots were allegedly fired and by the passage oftime. Given the conflicts in the evidence, a different result would not have beenunreasonable; nevertheless, according appropriate deference to the jury's credibilityassessments after hearing the witness testimony and observing their demeanor, we do notfind that its determination is against the weight of the evidence (see People v Bianca, 91 AD3d1127, 1127-1128 [2012], lv denied 19 NY3d 862 [2012]; People v Mann, 63 AD3d1372, 1373-1374 [2009], lv denied 13 NY3d 861 [2009]; People v Lozada, 35 AD3d969, 970 [2006], lv denied 8 NY3d 947 [2007]).
Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Bianca was likewiseconvicted of several crimes, and this Court later upheld his convictions (People v Bianca, 91 AD3d1127 [2012], lv denied 19 NY3d 862 [2012]).