| People v Nunes |
| 2019 NY Slip Op 00165 [168 AD3d 1187] |
| January 10, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Carlson Nunes, Appellant. |
Matthew C. Hug, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the Supreme Court (Milano, J.), rendered April 26,2016 in Schenectady County, upon a verdict convicting defendant of the crimes of murder in thesecond degree, manslaughter in the first degree, attempted robbery in the first degree (threecounts), attempted robbery in the second degree, criminal possession of a weapon in the seconddegree (two counts), aggravated criminal possession of a weapon, criminal use of a firearm in thesecond degree (two counts) and assault in the second degree.
Defendant was charged in a 14-count indictment based upon allegations that he shot andkilled Carlos Figueroa during a confrontation that ensued following a failed drug transaction.According to defendant, the weapon had been possessed by the victim and accidently dischargedduring the confrontation. After a jury trial, defendant was convicted of murder in the seconddegree, manslaughter in the first degree, three counts of attempted robbery in the first degree,attempted robbery in the second degree, two counts of criminal possession of a weapon in thesecond degree, aggravated criminal possession of a weapon, two counts of criminal use of afirearm in the second degree and assault in the second degree. Defendant was sentenced to aprison term of 22 years to life for the murder conviction and lesser determinate sentences on theremaining convictions, all sentences to run concurrently. Defendant appeals.
Defendant contends that the verdict was not supported by legally sufficient evidence and wasagainst the weight of the evidence. "When considering a challenge to the legal sufficiency of theevidence, we view the evidence in the light most favorable to the People and evaluate whetherthere is any valid line of reasoning and permissible inferences which could lead a rational personto the conclusion reached by the jury on the basis of the evidence at trial and as a matter of lawsatisfy the proof and burden requirements for every element of the crime charged. A weight ofthe evidence review requires us first to decide whether, based on all the credible evidence, adifferent finding would not have been unreasonable, and then, like the trier of fact below, weighthe relative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony. When conducting a review of the weight of theevidence, we view the evidence in a neutral light and defer to the jury's credibility assessments"(People v Granger, 166 AD3d1377, 1378 [2018] [internal quotation marks and citations omitted]).
On February 16, 2015, defendant's brother, Christopher Nunes, contacted defendant bytelephone and requested that defendant participate in a plan that Nunes and Rab Everitt had madeto acquire marihuana from Justice Pulver. Everitt testified that he had initially received a callfrom Nunes, who asked whether they could "find a come up," which Everitt explained was slangfor a robbery. Yunis Johnson, defendant's girlfriend and the mother of his child, testified that shewas with defendant when he received the telephone call from Nunes and that after the call ended,she and defendant went to defendant's home where he retrieved a black handgun—whichshe had seen in defendant's possession on multiple prior occasions—and placed it in thefront pocket of his sweatshirt. Defendant then called Sheiquan Parker and requested that heparticipate in the planned transaction for "assurance" because he was "a big guy . . .[with] weight on him." Johnson drove Nunes, Parker, Everitt and defendant to the City ofSchenectady, Schenectady County, where Everitt had arranged to meet Pulver.
Johnson, Everitt, Parker and defendant all testified that they planned to steal the marihuanafrom Pulver, who testified that he planned to rob Everitt by wrapping multiple plastic shoppingbags to make them resemble a package of marihuana that he could throw in the car beforegrabbing Everitt's money and fleeing. When defendant's group arrived in Schenectady, they drovepast the agreed-upon meeting place before dropping defendant, Nunes and Parker off at a nearbyconvenience store, where they hid in an alley. Johnson testified that when defendant exited thecar, he asked "is everybody ready?" and pulled the gun from his pocket. Johnson and Everitt thendrove to the meeting location. When Pulver approached the car accompanied by the victim,Everitt rolled the passenger window down and demanded to see the marihuana. After the victimdisplayed the package, Everitt asked for the opportunity to smell the marihuana. Pulver and thevictim left, ostensibly for the purpose of cutting open the package to permit Everitt to examinethe marihuana. Defendant, Nunes and Parker then ran from the alley. Defendant jumped over asnowbank and ran directly towards Pulver and the victim. Pulver testified that neither he nor thevictim were armed and that, as defendant approached them, defendant drew a gun and aimed it atthem, demanding "give us the weed or give us everything you got." Pulver then yelled "he has it"and threw his hands in the air. Defendant and the victim engaged in a brief struggle during whichthe victim was struck in the head twice before he died instantly upon being shot once in the neck.Defendant, Nunes and Parker returned to the car and fled the scene. As they drove away,defendant said, "I went to pistol whip him and the gun went off," and told Everitt, "You betternot say nothing, white boy." Johnson testified that she disposed of the gun the next day by givingit to an individual she knew only as "Shadow." Defendant testified that when he saw the victimand Pulver walking away from Johnson and Everitt, he exited the alley and confronted them.Defendant further testified that when the victim displayed a gun, he responded by knocking thegun from the victim's hands before retrieving it from the ground. According to defendant, he thenswung the gun at the advancing victim in self-defense when it discharged.
When viewing the evidence in the light most favorable to the People, the verdict was basedupon legally sufficient evidence. The testimony that defendant possessed a handgun and that heconfronted the victim with a demand for property while armed with the gun before striking andkilling the victim was legally sufficient to establish beyond a reasonable doubt each of theelements of the crimes for which he was convicted. Turning to the weight of the evidence,defendant argues that witnesses who testified for the People were not credible and providedcontradictory accounts of key events. Although a different verdict would not have beenunreasonable because the jury could have credited defendant's testimony that he did not possess agun and that he had acted in self-defense, the conflicting testimony and credibility issues were"fully explored during cross-examination and, in the final analysis, posed credibility questions forthe jury to resolve" (People v Wells,141 AD3d 1013, 1023 [2016] [internal quotation marks and citation omitted], lvdenied 28 NY3d 1189 [2017]). When we accord deference to the jury's credibilityassessment and view the evidence in a neutral light, we find that the verdict was supported by theweight of the evidence.
Defendant also contends that Supreme Court committed reversible error by allowing thePeople to impeach Parker, their own witness, on five occasions during direct examination. CPL60.35 modified the common-law rule against impeachment of one's own witness by allowing aparty who calls a witness to use certain prior contradictory statements to impeach the credibilityof the witness or to refresh his or her recollection (see People v Berry, 27 NY3d 10, 17 [2016]). CPL 60.35 isapplicable when a witness gives testimony on a material issue in the case that is contradicted by aprior statement. When the testimony adduced at trial tends to disprove the position of the partywho called the witness, the content of the statement may be admitted only for the purpose ofimpeachment, provided that the court give an appropriate limiting instruction upon receipt of theevidence (see CPL 60.35 [1], [2]; People v Berry, 27 NY3d at 17). However,when the trial testimony regarding a material issue in the case does not tend to disprove theposition of the party who called the witness, a prior contradictory statement is inadmissible andmay be used only to refresh the recollection of the witness in a manner that does not disclose itscontent to the jury (see CPL 60.35 [3]; People v Bellamy, 26 AD3d 638, 640 [2006]).
During Parker's direct examination, Parker testified that the plan to acquire marihuana wasthat "if [Everitt] couldn't snatch it, buy the weed." Over defendant's objection, the People werepermitted to read Parker's grand jury testimony in which he stated, "Yeah, there was a backupplan, that once they come to the car we were going to hop out and just take the weed." SupremeCourt promptly gave an appropriate limiting instruction. Parker's testimony that the plan was topurchase the marihuana if the initial attempt to snatch it failed tended to disprove the position ofthe People that defendant came to the scene with the intent to rob the victim and Pulver.Accordingly, Supreme Court properly permitted the People to use Parker's contradictory grandjury testimony for impeachment purposes (see People v Berry, 27 NY3d at 18; People v West, 166 AD3d 1080,1087 [2018]).
We do find that Supreme Court improperly allowed the People to refresh Parker'srecollection with respect to his trial testimony that he did not see defendant and Nunes leave thealley, because whether Parker saw defendant leave the alley was not a material issue in light ofevidence—including Parker's testimony and defendant's admission—that placeddefendant in close proximity to the victim at the time of the shooting. Supreme Court similarlyerred by permitting the People to refresh Parker's recollection based on his testimony that hecould not identify the person whom he saw pick up and discard a plastic bag that was on theground near the victim immediately after the shooting because such testimony is not relevant to amaterial issue in the case. However, in light of the overwhelming evidence of defendant's guilt,we find such errors to be harmless (seePeople v Abrams, 73 AD3d 1225, 1227 [2010], affd 17 NY3d 760 [2011]).
Defendant also contends that Parker was improperly impeached a fourth time regarding adiscussion that occurred among him, Parker, Nunes, Johnson and Everitt as they left the scene ofthe shooting in the car. When asked during direct examination if defendant said anything in thecar, Parker responded, "I'm not sure." Supreme Court then stated to Parker, "[Y]ou've givenprevious testimony regarding certain people saying certain things in the car. . . . Thequestion now on the floor is what, if anything, else did [defendant] say in the car?" When Parkeranswered that he was still unsure, Supreme Court allowed the People to refresh Parker'srecollection by having him read the relevant portion of his grand jury testimony. After Parkerstated that he remained unsure as to whether defendant had said anything in the car, the Peopleasked him, "[D]id defendant say anything about the bag?" Assuming, without deciding, thatSupreme Court properly permitted the People to refresh Parker's recollection, the questions posedby the court and the People that related the nature and content of Parker's prior testimony wereimpermissible methods of refreshing his recollection that constituted impeachment (seeCPL 60.35; People v Brazzeal, 172 AD2d 757, 759 [1991]). A prior inconsistentstatement may not be used to impeach a party's own witness who is noncommittal or does notcontradict factual evidence presented by the party who called the witness (see People vAbrams, 73 AD3d at 1227). However, the error was harmless because there wasoverwhelming evidence of defendant's guilt (see id.).
Defendant also contends that Supreme Court improperly permitted the People to impeachParker's testimony regarding the possession of a weapon. When asked whether defendant had afirearm, Parker testified, "I don't believe so." Such testimony is a denial, not an expression of aninability to remember. Thus, inasmuch as Parker's testimony contradicted the People's positionthat defendant possessed the weapon prior to the shooting—a material issue in thecase—Supreme Court properly permitted the People to impeach Parker by reading hisgrand jury testimony that he knew that defendant possessed a gun before the shooting occurred(see People v Davis, 45 AD3d1039, 1042 [2007], lv denied 10 NY3d 763 [2008]).
Defendant next contends that Supreme Court erred in allowing Johnson to testify that shesaw defendant in possession of a black pistol on several occasions prior to the shooting."Generally speaking, evidence of uncharged crimes or prior bad acts may be admitted where theyfall within the recognized Molineux exceptions—motive, intent, absence ofmistake, common plan or scheme and identity—or where such proof is inextricablyinterwoven with the charged crimes, provides necessary background or completes a witness'snarrative" (People v Burnell, 89AD3d 1118, 1120 [2011] [internal quotation marks, brackets and citations omitted], lvdenied 18 NY3d 922 [2012]). The evidence regarding defendant's prior possession of ahandgun was inextricably interwoven with the charged crimes and tended to show that defendanthad access to the weapon that was used in the shooting, and we discern no error in SupremeCourt's conclusion that its probative value outweighed any prejudicial effect (see id. at1121; People v Lee, 80 AD3d877, 880 [2011], lv denied 16 NY3d 833 [2011]; People v Portee, 56 AD3d 947, 950 [2008], lv denied 12NY3d 820 [2009]).
Supreme Court properly denied defendant's request for an adverse inference charge withrespect to video recordings and text messages. "The People have no constitutional or statutoryduty to acquire, or prevent the destruction of, evidence generated and possessed by privateparties, and the fact that a police officer viewed [a] video recording [does] not place it within thePeople's constructive possession or control" (People v Matos, 138 AD3d 426, 427 [2016] [internal quotationmarks, brackets and citations omitted], lv denied 27 NY3d 1135 [2016], certdenied 580 US &mdash, 137 S Ct 577 [2016]; accord People v Turner, 118 AD3d 463, 463 [2014], lvdenied 23 NY3d 1068 [2014]; seePeople v Suyoung Yun, 140 AD3d 402, 403 [2016], lv denied 28 NY3d 937[2016]; People v Hooks, 71 AD3d1184, 1186 [2010]; People vBanks, 2 AD3d 226, 226 [2003], lv denied 2 NY3d 737 [2004]). TheSchenectady Police Department received a tip from a woman who said that her son may haveseen someone retrieve a gun from a dumpster located behind a store approximately one blockfrom the shooting shortly before the incident. Thomas Mattice, a detective with the SchenectadyPolice Department, testified that he reviewed approximately 45 to 60 minutes of a videorecording from a camera that depicted the area around the store, and that he did not see anyoneenter or leave the fenced-in area behind the store during that time. Although Mattice did not takeany steps to preserve the video recording, a recording of the 35 minutes immediately prior to theshooting was preserved and admitted into evidence at trial.[FN*] Under such circumstances, the People had noduty to acquire or preserve additional video footage. Likewise, they had no duty to acquire orpreserve text messages that Pulver sent immediately following the shooting.
We reject defendant's argument that Supreme Court erred when, after summations weregiven, it changed its original determination and concluded that a justification instruction wouldnot be given for count 1—the felony murder charge. Supreme Court properly concludedthat a justification defense is not available in a prosecution for felony murder (see People v Walker, 78 AD3d 63,68, 71 [2010], lv denied 15 NY3d 956 [2010]). Further, although a defendant isordinarily deprived of the right to an effective summation where the court informs the parties ofthe charges that it intends to deliver and, after summations, changes the instructions (seePeople v Layer, 199 AD2d 564, 564-565 [1993], lv denied 83 NY2d 855 [1994]),there was no prejudice here because Supreme Court informed counsel of the change andpermitted them to reopen summations (see People v Altamirano, 61 Misc 3d 1, 4-5 [App Term, 2d Dept,2d, 11th & 13th Jud Dists 2018]).
Finally, we reject defendant's contention that the prosecutor's comments during summationdeprived him of a fair trial. "Reversal based on prosecutorial misconduct during summation iswarranted only if the misconduct is such that the defendant suffered substantial prejudice,resulting in a denial of due process. That determination hinges upon the severity and frequency ofthe conduct, whether the trial court took appropriate action to dilute the effect of the conduct andwhether, from a review of the evidence, it can be said that the result would have been the sameabsent such conduct" (People vWynn, 149 AD3d 1252, 1255 [2017] [internal quotation marks and citations omitted],lv denied 29 NY3d 1136 [2017]). The challenged statements were not improper becausethey were responsive to defendant's attack on the credibility of the People's witnesses orconstituted fair comment on the evidence (see id. at 1256; People v Rivera, 124 AD3d 1070,1075 [2015], lv denied 26 NY3d 971 [2015]; People v Hawkins, 110 AD3d 1242, 1244 [2013], lv denied22 NY3d 1041 [2013]). Defendant's remaining contentions have been considered and found tolack merit.
Mulvey, J.P., Devine, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:No other footage of the recordingwas preserved.