| People v Capers |
| 2015 NY Slip Op 05223 [129 AD3d 1313] |
| June 18, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMichael Capers, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the Supreme Court (Milano, J.), renderedJanuary 31, 2012 in Schenectady County, upon a verdict convicting defendant of thecrime of criminal possession of a weapon in the second degree (two counts).
In March 2010, defendant and three cohorts were involved in a deadly altercationwith a group of pedestrians on a street in the City of Schenectady, Schenectady County,during which two people, Alphonzo Pittman (hereinafter Pittman) and Virgil Terry, werefatally wounded by gunshot. Having allegedly fired a handgun into the crowd of people,defendant was charged in a multicount indictment with murder in the second degree (twocounts), criminal possession of a weapon in the second degree (six counts) and recklessendangerment in the first degree (three counts). Defendant was ultimately convicted by ajury of two counts of criminal possession of a weapon in the second degree andsentenced to an aggregate prison term of 14 years, to be followed by five years ofpostrelease supervision. Defendant appeals.
We disagree with defendant's contention that his convictions were against the weightof the evidence.[FN1] As relevant here, a person is guilty ofcriminal possession of a weapon in the [*2]second degreewhere he or she intends to use a loaded firearm against another person (see PenalLaw § 265.03 [1] [b]) or possesses any loaded firearm outside of his or herhome or business (see Penal Law § 265.03 [3]). The testimonyadduced at trial established that defendant was seated in the backseat of a vehicle thatslowed to a stop as Catoria Pittman, Pittman's sister, approached and began speakingwith the driver, whom she knew. At the end of the conversation, defendant pointed a gunat Catoria Pittman and instructed her to back away from the vehicle. After defendant andthe other three occupants—including Jalil Miles and Dashuan Terry (hereinafterTerry)—exited the vehicle, an argument ensued between Catoria Pittman, Pittmanand defendant, at which point several gunshots were fired by defendant andMiles.[FN2] Terrytestified that defendant was shooting into the crowd of people. Jamel Reed, anacquaintance with whom defendant was subsequently incarcerated, testified thatdefendant had admitted while in jail to shooting at Pittman. Pittman's cousin andgirlfriend both reportedly witnessed the argument and heard the consequent gunshots,although neither could say whether defendant was the shooter. While no weapon wasfound, a police detective later recovered eight 9 millimeter shell casings from the crimescene, and a firearms examiner testified that the casings were fired from at least twodifferent guns.
Here, two eyewitnesses—Terry and Catoria Pittman—directlyimplicated defendant in the shootings, while a third witness testified to defendant'spretrial admission (see People vMercado, 113 AD3d 930, 932 [2014], lv denied 23 NY3d 1040 [2014]).Contrary to defendant's contention, we are not obligated to reject the testimony of Terryand Reed on the basis that they accepted favorable plea deals in exchange for testifyingagainst defendant, especially given that these arrangements were fully explored at trial(see People v Novick, 126AD3d 1134, 1135 [2015]; People v Mercado, 113 AD3d at 932). In addition,the veracity of Catoria Pittman's account, in light of her relation to Pittman and herincomplete grand jury testimony,[FN3] was a credibility determinationproperly left to the jury (seePeople v Romero, 7 NY3d 633, 645 [2006]; People v Wingo, 103 AD3d 1036, 1037 [2013], lvdenied 21 NY3d 1021 [2013]). The physical evidence of the shootings anddefendant's escalation of the dispute—when considered in conjunction with thistestimony—provided ample support for the conclusion that he—actingeither as a principal or as an accomplice—intended to unlawfully use a loaded gunagainst another person (seePeople v Miles, 119 AD3d 1077, 1079 [2014], lv denied 24 NY3d 1003[2014]; People v Francis, 83AD3d 1119, 1121-1122 [2011], lv denied 17 NY3d 806 [2011]).Furthermore, "[i]t is uncontested that the shootings occurred outside on a street"(People v Miles, 119 AD3d at 1079). Although a different outcome would nothave been unreasonable, viewing [*3]the evidence in aneutral light and according appropriate deference to the jury's credibility determinations,we find that defendant's convictions were not against the weight of the evidence (see People v Valverde, 122AD3d 1074, 1075-1077 [2014]; People v Maschio, 117 AD3d 1234, 1236 [2014]).
Next, defendant argues that County Court (Drago, J.) erred in denying his motion tosuppress a photo array identification. We disagree. Here, a photograph of defendant thatwas taken during a juvenile delinquency proceeding and which should have beendestroyed pursuant to Family Ct Act § 354.1 (2) was used in a photo arrayshown to Catoria Pittman. Defendant's contentions that the misuse of this photographdeprived him of due process and that the court erred in refusing to examine how thepolice obtained the photograph are not persuasive. "[A]lthough the statutorily conferredright to the return [or destruction] of one's photograph serves important purposes andprotects important interests, the infringement of that right does not implicateconstitutional considerations such as to require the sanction of suppression" (People vPatterson, 78 NY2d 711, 716 [1991]; see People v Greene, 9 NY3d 277, 280 [2007]; Matter of Quadon H., 55 AD3d834, 835 [2008]). In any event, defendant suffered no prejudice, as there was noassertion that the photograph was unduly suggestive and the People followed SupremeCourt's instruction not to discuss the photo array at trial.
The People's failure to disclose two statements that indicated that Terry shot bothvictims did not deprive defendant of a fair trial. Defendant preserved this argument forreview by raising this issue before Supreme Court upon his discovery of these statementsin the presentence investigation report (see People v Ennis, 11 NY3d 403, 414 n 2 [2008], certdenied 556 US 1240 [2009]). " 'To establish a Brady violation, adefendant must show that (1) the evidence is favorable to the defendant because it iseither exculpatory or impeaching in nature; (2) the evidence was suppressed by theprosecution; and (3) prejudice arose because the suppressed evidence wasmaterial' " (People vLewis, 125 AD3d 1109, 1110 [2015], quoting People v Fuentes, 12 NY3d259, 263 [2009]). Since defendant was not convicted of murder in the seconddegree—the charges to which this allegedly exculpatory materialrelates—we perceive no prejudice from the nondisclosure relative to those charges(compare People v Mitchell,55 AD3d 1048, 1050 [2008], lv denied 12 NY3d 856 [2009]; People v Pittman, 33 AD3d1118, 1120 [2006]). While arguably relevant for purposes of impeaching Terry, inview of the overall evidence implicating defendant, there is no reasonable probabilitythat the disclosure of these statements would have resulted in a different outcome (see People v Garrett, 23 NY3d878, 891 [2014]; People vPage, 115 AD3d 1067, 1068 [2014], lv dismissed 23 NY3d 966[2014]).
Supreme Court did not err in admitting testimony regarding a prior altercationbetween defendant and his friends and Pittman's group of friends. Defendant's contentionin this regard was preserved by his timely objection at trial (see People v Williams, 89AD3d 1222, 1224 [2011], lv denied 18 NY3d 887 [2012]; People v Tyrell, 82 AD3d1352, 1355-1356 [2011], lv denied 17 NY3d 810 [2011]). Although priorbad acts are inadmissible to demonstrate criminal propensity, they are admissible toshow, among other things, a defendant's motive and intent for committing the chargedcrimes (see People v Morris,21 NY3d 588, 594 [2013]; People v Alnutt, 107 AD3d 1139, 1142 [2013], lvdenied 22 NY3d 1136 [2014]). Reed testified that defendant was involved in afistfight with a friend of Pittman following a high school football game just six monthsbefore the instant shootings. The fight eventually escalated into a large brawl,engendering animosity between the two groups. The account of this altercation wascertainly probative of defendant's motive and intent for shooting at Pittman (seePeople v Tyrell, 82 AD3d at 1356; People v Tatro, 53 AD3d 781, 785 [2008], lvdenied 11 NY3d 835 [2008]). Moreover, the court's exclusion of testimonyconcerning gang-related gun violence that was [*4]precipitated by the brawl reflects a "measured effort toachieve an appropriate balance" that protected the rights of defendant while addressingthe legitimate needs of the prosecution (People v Thibeault, 73 AD3d 1237, 1241 [2010], lvdenied 15 NY3d 810 [2010], cert denied 562 US 1293 [2011]). Nor did Supreme Court err in its Sandoval ruling, which permittedthe People to inquire about defendant's 2008 charges of criminal possession of a forgedinstrument, petit larceny and resisting arrest and two more recent violations of jaildisciplinary rules. As these incidents touched on defendant's credibility (see People v Wimberly, 86AD3d 806, 807 [2011], lv denied 18 NY3d 863 [2011]; People v Smith, 63 AD3d1301, 1304 [2009], lv denied 13 NY3d 862 [2009]), and considering theseveral events about which Supreme Court prohibited cross-examination, we find that thecourt did not abuse its discretion.
We agree with defendant that Supreme Court erred in allowing the People to play forthe jury that portion of an interrogation video in which he invoked his right to counsel.During an off-the-record discussion, defense counsel requested that part of the video beredacted. As a result of an apparent miscommunication between defense counsel and thecourt, the jury was shown defendant's request for an attorney, at which time defensecounsel registered an objection and asked for a curative instruction. Accordingly, we findthat this issue is preserved for our review (compare People v Wright, 126 AD3d 1036, 1038-1039[2015]). While it is well settled that "a defendant's invocation of his or her right tocounsel cannot be used against him or her during the People's direct case" (id. at1038 [internal quotation marks, brackets, ellipses and citation omitted]; see People v Hunt, 18 AD3d891, 892 [2005]), we find that the error in admitting this portion of the video washarmless, in light of the prompt curative instruction delivered by the court and theoverwhelming evidence of defendant's guilt (see People v Wright, 126 AD3d at1039; People v Daniels, 115AD3d 1364, 1365 [2014], lv denied 23 NY3d 1019 [2014]; compare People v Demagall,114 AD3d 189, 201-202, 202 n 7 [2014], lv denied 23 NY3d 1035 [2014];People v Dashnaw, 85AD3d 1389, 1392 [2011], lv denied 17 NY3d 815 [2011]; People v Johnson, 70 AD3d1188, 1190-1191 [2010]).
We are unpersuaded by defendant's claim that his counsel's failure to move for amistrial constituted ineffective assistance of counsel. Although Supreme Court suggestedthat such motion may be appropriate after the interrogation video was played, defensecounsel, upon speaking with defendant, ultimately determined not to request a mistrial,and defendant has failed to "demonstrate the absence of strategic or other legitimateexplanations" for this decision (People v Caban, 5 NY3d 143, 152 [2005] [internalquotation marks and citation omitted]; see People v Diviesti, 101 AD3d 1163, 1164-1165 [2012],lv denied 20 NY3d 1097 [2013]). Indeed, in view of the fact that the jury onlyconvicted defendant of two of the eight counts pending against him,[FN4] defense counsel mayhave reasonably believed that retrying the case before a different panel of jurors wouldhave posed a greater risk to defendant than the prejudice resulting from the video (see People v Washington, 89AD3d 1140, 1142 [2011], lv denied 18 NY3d 963 [2012]). In any event, therecord reflects that defense counsel delivered cogent opening and closing statements,vigorously questioned the weight of the People's evidence, thoroughly cross-examinedwitnesses, made appropriate objections and avoided convictions on the most seriouscharges. Accordingly, we are satisfied that defendant received meaningful representation(see People v Jackson, 121AD3d 1185, 1189 [2014]; People v Roach, 119 AD3d 1070, 1072-1073 [2014], lvdenied 24 NY3d 1221 [2015]).
Finally, we do not agree that defendant's sentence was harsh or excessive. As aninitial [*5]matter, we note that defendant, who was just16 years old at the time of the incident, was ineligible for youthful offender status(see CPL 720.10), given his convictions for two armed felonies (see CPL1.20 [41]; 720.10 [2] [a]; Penal Law §§ 70.02, 265.03 [1] [b]; [3]) andhis failure to establish mitigating circumstances or that he only played a minor role in thecrimes (see CPL 720.10 [3]; People v Butler, 126 AD3d 1122, 1124 [2015]; People v Woullard, 115 AD3d1053, 1054-1055 [2014], lv denied 23 NY3d 1026 [2014]). In spite ofdefendant's youth and sparse criminal history, we find no abuse of discretion in thesentence imposed by Supreme Court, especially considering the violent nature of thealtercation that left two people dead (see People v Hull, 125 AD3d 1099, 1101-1102 [2015];People v Mercado, 113 AD3d at 934; see also People v Edwards, 124 AD3d 988, 992 [2015];People v Valverde, 122 AD3d at 1078; People v Arnold, 32 AD3d 1051, 1051 [2006]).
Defendant's remaining contentions, to the extent not discussed herein, have beenconsidered and found to be lacking in merit.
Peters, P.J., Garry and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Defendant failed topreserve his challenge to the legal sufficiency of the evidence supporting his convictions,as his motion to dismiss was limited to charges for which he was not convicted (see People v Buskey, 45 AD3d1170, 1172 [2007]; Peoplev Alvarez, 38 AD3d 930, 934 [2007], lv denied 8 NY3d 981 [2007]).Nevertheless, our weight of the evidence review necessarily includes a verification thatall of the elements of the crimes for which he was convicted were proved beyond areasonable doubt (see People vColburn, 123 AD3d 1292, 1292 n [2014], lv denied 25 NY3d 950[2015]).
Footnote 2:Miles' conviction fortwo counts of criminal possession of a weapon in the second degree stemming from thisincident was recently affirmed by this Court (People v Miles, 119 AD3d 1077 [2014], lv denied24 NY3d 1003 [2014]).
Footnote 3:Catoria Pittman's grandjury testimony omitted her accusation that defendant had threatened her with a gun.
Footnote 4:The three counts ofreckless endangerment in the first degree were dismissed prior to trial.