| People v Demellier |
| 2019 NY Slip Op 05717 [174 AD3d 1120] |
| July 18, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Joshua T. Demellier, Appellant. |
Pamela B. Bleiwas, Ithaca, for appellant, and appellant pro se.
Weeden A. Wetmore, District Attorney, Elmira (William D. VanDelinder of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered July 1, 2015, upon a verdict convicting defendant of the crimes of attempted murder inthe second degree, criminal use of a firearm in the first degree, assault in the second degree andassault in the third degree.
Defendant was charged in a four-count indictment with attempted murder in the seconddegree, criminal use of a firearm in the first degree and assault in the second degree arising fromthe shooting of victim A and assault in the third degree based on defendant striking victim B inthe head. Following a jury trial, defendant was convicted as charged. Thereafter, defendant wassentenced to concurrent prison terms of 25 years, followed by five years of postreleasesupervision, for his convictions of attempted murder in the second degree and criminal use of afirearm in the first degree, and to lesser concurrent prison terms for his remainingconvictions.[FN*] Defendantappeals.
We affirm. Defendant argues that the verdict was against the weight of the evidence, becausethere was no credible evidence to identify him as the perpetrator of the crimes charged or to showthat he intended to cause the death of victim A. "When undertaking a weight of the evidencereview, we must first determine whether, based on all the credible evidence, a different findingwould not have been unreasonable and[, if not,] then weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony to determine if the verdict is supported by the weight of the evidence. Whenconducting this review, we consider the evidence in a neutral light and defer to the jury'scredibility assessments" (People vGill, 168 AD3d 1140, 1140-1141 [2019] [internal quotation marks and citationsomitted]; see People v Hackett, 167AD3d 1090, 1091-1092 [2018]).
As relevant here, a conviction for attempted murder in the second degree requires the Peopleto prove that, with intent to cause the death of another, the defendant engaged in conduct thattended to effect the commission of that crime (see Penal Law§§ 110.00, 125.25 [1]; People v Greenfield, 167 AD3d 1060, 1061 [2018], lvdenied 32 NY3d 1204 [2019]). To support a conviction for criminal use of a firearm in thefirst degree, the People must show that the defendant committed a class B violent felony offense,such as attempted murder in the second degree (see Penal Law § 70.02 [1]),and "display[ed] what appear[ed] to be a pistol, revolver, rifle, shotgun, machine gun or otherfirearm" (Penal Law § 265.09 [1] [b]). To support a conviction for assault in thesecond degree, the People are required to prove that, "[w]ith intent to cause physical injury toanother person, [the defendant] cause[d] such injury to such person or to a third person by meansof a deadly weapon or a dangerous instrument" (Penal Law § 120.05 [2]). As toassault in the third degree, the People are required to establish that, "[w]ith intent to causephysical injury to another person, [the defendant] cause[d] such injury to such person or to a thirdperson" (Penal Law § 120.00 [1]).
The altercation at issue occurred around 9:00 p.m. on June 1, 2014 outside a residence onSullivan Street in the City of Elmira, Chemung County, where defendant and the victims wereattending a party. A scuffle broke out between defendant and another guest that the two victimsand the homeowner attempted to stop. Hearing the commotion, the bartender at a lounge nextdoor looked out the window and observed a man—who she identified as defendant attrial—wearing a "lime green shirt" and a "light hat with lime green trim" arguing withanother man, victim B. The bartender explained that defendant walked back toward theresidence, only to return and strike victim B, knocking him unconscious. She then observeddefendant pointing a gun in victim B's face. The bartender explained that she could identifydefendant because it was not too dark and "his cheeks and his eyes . . . stood out to[her]," as well as his shirt. Although he could not identify defendant, the bartender's brother alsoobserved the man in a lime green shirt pointing what appeared to be a gun at victim B. Anotherbar patron identified defendant as wearing a lime green shirt and saw him pointing a gun atvictim B, who was on the ground. The patron then saw defendant run across the street and firethe gun at victim A. The patron explained that he had seen defendant numerous times throughoutthe day. A neighbor also testified that she saw a man chasing another man across the street andthat she "[saw] a gunshot, like a flash, and then [she] heard the pow." For his part, victim Bexplained that defendant went into the house and returned with what appeared to be a gun.Victim B turned to run, but then lost consciousness.
During the direct examination of victim A, he answered a few introductory questions, butthen abruptly left the witness stand. He returned after a brief recess, remained unresponsive and,when asked whether he "[could] tell the jury who it was that shot [him]," he responded, "Na."The People requested another recess, but were directed to complete the questioning. Victim Aagain denied seeing anyone with a gun, and the direct examination concluded. The defense optednot to cross-examine victim A. After another recess, the People moved to recall victim A to thestand. The trial was recessed overnight and, over defendant's objection, victim A was recalled tothe stand. Victim A then testified that, after the fight between defendant and another person wasbroken off, defendant went inside the house. When defendant returned, victim A heard "a bang"and observed that victim B was lying on the ground. Victim A then began to run to hiscar—which was parked across the street from the residence—with defendantfollowing him. When victim A got into the car, he observed defendant standing in front of the carpointing the gun at him and then firing a shot at him. On cross-examination, victim Aacknowledged that he initially declined to identify who shot him because he did not want to be inthe same room with defendant, but now, he was "a little more calm" and "actually think[ing]clear."
Although a different verdict would not have been unreasonable, upon our review of therecord, we find that the jury's verdict was not against the weight of the evidence. Considering thecircumstances, including the place and manner in which defendant shot at victim A, we find thatthis evidence, viewed in a neutral light, supports the inference that he intended to kill victim A(see People v Reese, 166 AD3d1057, 1058-1060 [2018], lv denied 33 NY3d 953 [2019]; People v Perkins, 160 AD3d 1455,1456 [2018], lv denied 31 NY3d 1151 [2018]). We are similarly unpersuaded bydefendant's contention that the witnesses did not credibly identify him as the perpetrator of thecrimes. Victim A identified defendant as the person who shot him, and his testimony wascorroborated by the testimony of the bar patron. Although victim A admitted to initially statingthat he did not know who shot him, the inconsistencies in his testimony were fully explored oncross-examination and do not render his testimony unworthy of belief or establish a basis uponwhich to disturb the jury's resolution of these credibility issues (see People v Mitchell, 57 AD3d1308, 1309 [2008]). As for victim B, he observed defendant come toward him with a gun,the bartender witnessed the assault, and the bartender's brother, as well as the bar patron, sawdefendant standing over and pointing a gun at victim B. Considering the evidence in a neutrallight and according deference to the jury's ability to evaluate credibility, we find that the verdictwas not against the weight of the evidence (see People v Rashid, 166 AD3d 1382, 1384 [2018], lvdenied 32 NY3d 1208 [2019]; People v Wright, 22 AD3d 873, 876 [2005], lv denied 6NY3d 761 [2005]).
Defendant also contends that he was denied a fair trial when the People were allowed torecall victim A. He further argues that he was denied the right to confront victim A becausevictim A refused to cooperate during cross-examination. We find defendant's contentions to beunpersuasive. County Court acted within its discretion in allowing the People to recall victim A,as the People had not yet rested their case. Victim A was clearly an important witness and wasquestioned regarding the incident and the reasons for his inconsistent testimony (see People vRostick, 244 AD2d 768, 769 [1997], lv denied 91 NY2d 929 [1998]; see also People v Brown, 111 AD3d1385, 1387 [2013], lv denied 22 NY3d 1155 [2014]). Our review of the recordfurther shows that, although victim A was combative, he answered the relevant questions posedby defense counsel (see generally People v Chin, 67 NY2d 22, 28 [1986]; People v Rodriguez, 24 AD3d 394,395 [2005], lv denied 6 NY3d 837 [2006]). As such, County Court did not err by refusingto grant defendant's motion to strike victim A's testimony. Defendant's remaining contentions, tothe extent not specifically addressed herein, have been examined and found to be lacking inmerit.
Egan Jr., J.P., Clark, Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:The sentence was to runconcurrently to the sentences imposed in connection with two other indictments.