| People v Lebron |
| 2018 NY Slip Op 07368 [166 AD3d 1069] |
| November 1, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Myliek Lebron, Appellant. |
Mitchell S. Kessler, Cohoes, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Schenectady County(Sypniewski, J.), rendered August 15, 2016, upon a verdict convicting defendant of thecrimes of murder in the second degree and criminal possession of a weapon in the seconddegree (four counts).
In June 2015, Lasean Gause (hereinafter the victim) was killed when two assailantsshot at a group of people standing outside a grocery store in the City of Schenectady,Schenectady County. Defendant, Kasheef James and Joshua Sayles were thereafterjointly charged with two counts of murder in the second degree (reckless and intentional)and four counts of criminal possession of a weapon in the second degree. Sayles agreedto provide truthful testimony as part of an agreement by which he pleaded guilty tocriminal possession of a weapon in the second degree, and County Court severed James'trial from defendant's trial. Following a jury trial, defendant was convicted of intentionalmurder in the second degree and four counts of criminal possession of a weapon in thesecond degree. He was sentenced to an aggregate prison term of 25 years to life.Defendant appeals.
Initially, defendant claims that County Court violated the statutory requirement thatjurors must be sworn in "immediately" after their selection when it delayed the swearingin of jurors until all members of the jury had been chosen (CPL 270.15 [2]). Defendantfailed to preserve this claim with a timely objection, and thus the court did not have anopportunity to correct this error (see People v Ross, 34 AD3d 1124, 1125 [2006], lvdenied 8 NY3d 884 [2007]). Contrary to defendant's claim, the delay was not a modeof proceedings error, such that preservation was not required. It was instead a "technicalerror" (People v Quinones,18 AD3d 330, 331 [2005], lv denied 5 NY3d 809 [2005]) that did not "go[ ]to the essential validity of the proceedings conducted below such that the entire trial[was] irreparably tainted" (People v Agramonte, 87 NY2d 765, 770 [1996][internal quotation marks and citation omitted]). Notably, all jurors were swornimmediately after the final group of jurors was selected, before opening [*2]statements were given and before any evidence waspresented, and defendant has identified no prejudice resulting from the delay.
Defendant next contends that his conviction for murder in the second degree isagainst the weight of the evidence in that the People failed to prove that he or Jamesintended to kill any specific individual when they fired their weapons toward the peopleoutside the grocery store. The testimony of the People's witnesses established thatdefendant had been "jumped" in an attack by multiple younger individuals several daysearlier. In a video recording made shortly after the attack, defendant vowed revenge andspecifically mentioned a person called "J Savage." On the evening of the shooting, agroup that included defendant, James, Sayles, Aaron Ketchmore and a female friend ofdefendant (hereinafter the friend) gathered on the street outside defendant's home.According to the friend, Ketchmore mocked defendant for having been attacked byyounger boys and said that if he had been attacked, he would have done something aboutit and "shot at people."[FN1] Sayles testified that Ketchmorecriticized defendant for failing to "handle [his] business" by responding to the attack, andtold him that his inaction "ma[de the neighborhood] look bad." Ketchmore saidsomething about going to get a gun. He and defendant briefly departed, rejoining thegroup after about five minutes.
Sayles then drove defendant and the friend around the area in Sayles' silver Chrysler,driving past a park and the store where the shooting later occurred. The friend said thatdefendant wanted "[t]o see if anyone was outside that he had problems with." Saylestestified that defendant wanted to know if anyone who had been involved in theattack—in particular J Savage—was in the park, but that it was too dark tosee. When the vehicle returned "uptown," defendant asked Sayles for James' telephonenumber. According to the friend, defendant wanted to make calls "to find someone elsethat had a gun to ride with him because he didn't want to go [back to the park] alone."James then passed by in another vehicle, and defendant flagged him down and told himto get into the Chrysler. According to Sayles, defendant told James that he thought that JSavage and others might be in the park. Sayles drove defendant to his home, wheredefendant went inside briefly and returned wearing a hooded sweatshirt. The friendtestified that either defendant or James then said something about going to James' houseto get another gun.[FN2] Sayles drove to James' home, whereJames put on a hooded sweatshirt with distinctive markings. They drove past the parkagain, but saw only children there. James asked defendant how he could have thoughtthat J Savage was in this group, and complained that defendant "had [him] all amped upfor no reason."
Sayles then drove past the grocery store, where people were standing outside.According to the friend, defendant, who was a member of the Crips gang, saw two menwho were known to be members of the Bloods gang, and said that they were "the guysthat said [that] when they see [defendant] they're going to jump [him]." Sayles testifiedthat defendant said that he recognized someone and asked Sayles to stop. At defendant'sdirection, Sayles parked the vehicle around the corner of a nearby street, and defendantand James exited, putting their hoods up. According to Sayles, defendant said that he"might have to shoot at that guy," meaning the person he had recognized. Defendantasked James if he was ready to go, and he and defendant walked toward the store.
About two minutes later, Sayles and the friend, who had remained in the car, heardgunshots coming from the direction of the store. James and defendant ran to the car andgot in. As Sayles drove away, he said that he hoped that James and defendant had notfired the gunshots, and defendant responded that he "had to let off at somebody."Defendant said that "he [did]n't want it to be obvious," took down his hood and reclinedhis seat. As the group drove around the park and back past the store to see if there hadbeen any police response, James and defendant [*3]repeatedly said that they did not know if they had hitanyone. According to Sayles, James said that he did not know what person defendant hadmeant for him to shoot at, and that he had just shot at whoever was at the store,"empt[ying] out his clip." Defendant responded that he had intended for James to target aman wearing a red hoody or a red hat.[FN3]
Sayles then drove the vehicle to the street outside defendant's house, wheredefendant told Ketchmore that he "just had to lit up [the store]" and that "he let it go onsomebody at [the store], he [saw] somebody over there." The group then entereddefendant's house, where, according to Sayles, defendant said that he had seen someoneat the store who had been involved in another attack on him a year earlier, and thatdefendant had felt the need to shoot at him. Defendant said that he had shouted thisindividual's name, that the person had started running and that he and James had shot athim but knew that they had not hit him. James and defendant each removed a gun fromtheir hoody pockets and put them on the table, and defendant told Ketchmore that he hadfired several shots before his gun jammed. Later, defendant used his phone to search fornews about the shooting and told the friend that he had learned that the victim had beenkilled. According to the friend, defendant seemed surprised and "mad," but notremorseful, and said that he had been trying to shoot the two men he had identified asBloods.
The People submitted surveillance video and audio recordings that, among otherthings, showed Sayles' car passing by the grocery store in the moments just before theshooting, followed by James and defendant walking toward the store and then fleeing afew moments later. There were also recordings of bystanders running away and thesound of multiple gunshots. Although none of the recordings included images ofdefendant or James firing their weapons, a witness who was standing near the victimheard several "pops" and turned in that direction. As she heard about six additional shots,she saw a man wearing a distinctive hoody, like the one worn by James, with his armextended and "flashes" coming out of the extended arm. A second person, who matcheddefendant's description, was behind the first man and ran away while "checking aroundto see if his friend was coming." Another witness said that he heard shots fired and sawtwo men running down the street and getting into a Chrysler, which then "drove offnonchalant."[FN4]
The testimony established that a bullet struck the victim in the chest, passed throughhis lung and exited through his back. Although bullets were found nearby, it was notpossible to identify the projectile that had struck the victim, and the guns were notrecovered. A forensic scientist employed by the State Police testified that she examinednine casings found at the scene and concluded, based upon their markings, that three hadbeen fired from one weapon and six from another weapon, and that the markings wereconsistent with the types of guns that witnesses said defendant and James had used. ThePeople submitted a video recording of defendant's statement to police in which, afterinitial denials, he admitted his presence at the shooting scene but claimed that he wasarmed only with a BB gun, as well as a letter written by defendant to the victim's familyin which he said that he was writing to apologize, but added that he was not solelyresponsible as the victim should have been provided with better medical care.
Contrary to defendant's assertion, the fact that James was convicted of manslaughterin the second degree does not affect our analysis of defendant's culpability. The recorddoes not reveal the nature of the evidence that was presented against James at hisseparate trial (compare People v Ramos, 20 AD2d 882, 882 [1964]). It is wellestablished that "the intent to kill may be inferred from the surrounding circumstancesand a defendant's actions" (People v Stanford, 130 AD3d 1306, 1308 [2015] [internalquotation marks and citation omitted], lv denied 26 NY3d 1043 [2015]). ThePeople submitted extensive evidence that defendant intended to target a certainindividual or individuals, including his multiple statements to that effect. Even if adifferent verdict would not have been unreasonable, upon now viewing the evidence in aneutral light and giving the appropriate deference to the jury's credibility assessments, wefind that this [*4]verdict was not against the weight of theevidence (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v King, 124 AD3d1064, 1065 [2015], lv denied 25 NY3d 1073 [2015]; People v Miller, 118 AD3d1127, 1128-1129 [2014], lv denied 24 NY3d 1086 [2014]).
Defendant next challenges County Court's Molineux ruling, contending thatSayles was improperly permitted to testify that he overheard a discussion betweendefendant and Ketchmore about "reupping" a supply of "dope." "Evidence of priorcriminal conduct or bad acts is inadmissible to establish a defendant's criminal propensityor bad character, but may be admitted when it is relevant to some material issuepertaining to the charged crime and its probative value outweighs its potential for unfairprejudice" (People vMcCommons, 143 AD3d 1150, 1153 [2016] [citations omitted], lvdenied 29 NY3d 999 [2017]). The People contend that the "reupping" remark wasadmissible because it provided necessary background information explaining defendant'srelationship with Ketchmore and was an inextricable part of the conversation in whichKetchmore volunteered to obtain a gun (see e.g. People v Anderson, 149 AD3d 1407, 1412 [2017],lv denied 30 NY3d 947 [2017]; People v Wells, 141 AD3d 1013, 1019-1020 [2016], lvdenied 28 NY3d 1189 [2017]). However, the reference to "reupping" was so briefand telegraphic that it shed no real light on the relationship between defendant andKetchmore. Moreover, the remark was apparently made after Ketchmore and defendantreturned from obtaining the gun, and thus could have been omitted from Sayles'testimony without disturbing that narrative. Accordingly, the testimony should not havebeen admitted (see People v Crandall, 67 NY2d 111, 116-117 [1986]).Nevertheless, in light of the overwhelming nature of the other evidence, we find thatthere is no significant probability that defendant would have been acquitted if this brieftestimony had not been admitted and, thus, the error was harmless (see People vCrimmins, 36 NY2d 230, 242-243 [1975]; People v Anderson, 149 AD3d at1412).
Finally, we reject defendant's contention that his sentence is harsh and excessive. Inview of the seriousness of defendant's crimes and his failure to accept responsibility forhis actions, we find no abuse of discretion or extraordinary circumstances warranting areduction in the interest of justice (see People v Sanchez, 75 AD3d 911, 914-915 [2010],lv denied 15 NY3d 895 [2010]; People v Clarke, 5 AD3d 807, 810 [2004], lvdenied 2 NY3d 797 [2004]).
Egan Jr., Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The friend testified forthe People pursuant to an agreement by which she was not prosecuted for herinvolvement.
Footnote 2:Sayles gave differingtestimony on this point, stating that James wanted to get his sweatshirt.
Footnote 3:It was not clear fromSayles' testimony whether defendant made all of these statements in the car, or whethersome of them were made, or repeated, later in the evening.
Footnote 4:The other witnessesdescribed the Chrysler as silver; this witness said that it was olive green.