| People v Banks |
| 2020 NY Slip Op 01525 [181 AD3d 973] |
| March 5, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Zecary L. Banks, Appellant. |
Paul J. Connolly, Delmar, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (William D. VanDelinder ofcounsel), for respondent.
Devine, J. Appeal from a judgment of the County Court of Chemung County (RichJr., J.), rendered September 8, 2017, upon a verdict convicting defendant of the crimes ofattempted murder in the second degree, assault in the first degree (three counts), assaultin the second degree (two counts) and criminal possession of a weapon in the seconddegree (two counts).
On July 28, 2016, a gunman opened fire in a bar and struck the apparent target andfour bystanders. Defendant quickly became a suspect and was charged in an indictmentwith numerous offenses related to the shooting. Following a jury trial, defendant wasfound guilty of attempted murder in the second degree, assault in the first degree (threecounts), assault in the second degree (two counts) and criminal possession of a weaponin the second degree (two counts). County Court sentenced defendant to 25 years inprison and five years of postrelease supervision upon the attempted murder in the seconddegree conviction related to the targeted victim, and imposed equal or lesser concurrentsentences for the assault in the first degree conviction related to that victim and bothcriminal possession of a weapon in the second degree convictions. County Court directedthat the sentences for the remaining convictions—each relating to a distinctvictim—run consecutively to the foregoing convictions and to each other. CountyCourt sentenced defendant to 25 years in prison and five years of postrelease supervisionupon each assault in the first degree conviction and seven years in prison and three yearsof postrelease supervision upon each assault in the second degree conviction. Defendantappeals.
Defendant first argues that the verdict was not supported by legally sufficientevidence and was against the weight of the evidence. He focuses upon the proof that hewas the shooter,[FN1] which the People attempted to establishthrough the testimony of multiple individuals who were present at the time of theshooting. The eyewitnesses agreed that the shooter was a black man standing near thefront door of the bar and, for the most part, described him as wearing a dark shirt and ared hat. Not all of the eyewitnesses could identify that man, but the three eyewitnesseswho could either knew defendant or had seen him earlier in the evening and named himas the shooter. The People also elicited testimony that defendant stopped checking inwith his bail bondsman and fled the state immediately after the shooting, whichsuggested consciousness of guilt and was "circumstantial corroborating evidence ofidentity" (People v Jones, 276 AD2d 292, 292 [2000], lv denied 95 NY2d965 [2000]; see People v Gaines, 158 AD2d 540, 541 [1990], lv denied76 NY2d 735 [1990]; People v Blanchard, 105 AD2d 492, 493 [1984]).
Viewing the foregoing proof in the light most favorable to the People, we discern avalid line of reasoning and permissible inferences from which a rational juror could findthat defendant was the shooter (see People v Smith, 174 AD3d 1039, 1042 [2019]; People v Jiminez, 36 AD3d962, 963 [2007], lv denied 8 NY3d 947 [2007]). A different conclusion wasa reasonable possibility given the discrepancies in some eyewitnesses' accounts overtime, as well as the testimony of defendant's acquaintance that defendant had analtercation with the targeted victim but did not produce a handgun and did not, byextension, intentionally harm that victim by repeatedly shooting him. After viewing theevidence in a neutral light and deferring to the jury's ability to assess the credibility of thewitnesses, however, we cannot say that the verdict was against the weight of the evidence(see People v Hamilton, 176AD3d 1505, 1506-1507 [2019], lv denied 34 NY3d 1128 [2020]; People v Smith, 174 AD3d at 1042-1043).
Turning to defendant's complaints about the conduct of the trial, we perceive noabuse of discretion in County Court's refusal to give a missing witness charge withregard to two of the victims. Defendant gave no reason to believe that one of thosevictims, a bystander who had been shot in the arm, "could offer noncumulative, materialtestimony" as required (People vFranqueira, 143 AD3d 1164, 1169 [2016]). The other requested witness was thetargeted victim and, although he may well have had noncumulative, material information,the People represented that he had not cooperated with investigators, denied knowinganything about the shooting and made clear that he would not testify. As such, there wasno reason to believe that he would have been a favorable witness for the People so as towarrant a missing witness charge (see People v Stover, 174 AD3d 1150, 1153-1154 [2019],lv denied 34 NY3d 954 [2019]; People v Bessard, 148 AD2d 49, 53-54[1989], lv denied 74 NY2d 845 [1989]).
Defendant next argues that County Court erred in admitting into evidence anoperable .38-caliber revolver, containing five spent rounds, that was recovered from anearby rooftop a few days after the shooting. Testing could not conclusively show thatthe revolver was used in the shooting or that it had been handled by defendant, but itremained relevant given the circumstances of its recovery and the fact that it could not beruled out as the one used by the shooter (see People v Del Vermo, 192 NY 470,481-482 [1908]; People vCepeda, 158 AD3d 468, 469 [2018], lv denied 31 NY3d 1080 [2018];People v Gonzalez, 88AD3d 480, 480 [2011], lv denied 18 NY3d 924 [2012]). The revolver wasaccordingly admissible unless its probative value was "substantially outweighed by thedanger that it [would] unfairly prejudice the other side or mislead the jury," and CountyCourt attempted to reduce that danger by telling the jury why the revolver was beingadmitted into evidence and urging it to give the revolver whatever weight it deemedappropriate (People v Scarola, 71 NY2d 769, 777 [1988]; see People vCepeda, 158 AD3d at 469). County Court's ameliorative efforts arguably fell shortbut, in our view, any resulting error was harmless "in light of the overwhelmingtestimony identifying defendant as [the] assailant" (People v Alfaro, 19 NY3d 1075, 1076 [2012]; seePeople v Bass, 277 AD2d 488, 491 [2000], lv denied 96 NY2d 780[2001]).
Defendant next contends that the testimony of two witnesses that they fearedretaliation for naming him as the shooter deprived him of a fair trial, a contention that isunpreserved for our review but that we will consider in the context of his relatedargument that defense counsel rendered ineffective assistance. The record reflects thatboth witnesses were initially hesitant to tell investigators who the shooter was, promptingdefense counsel to cross-examine both on that point to undermine their identifications ofdefendant. After that attack on each witness's credibility, the People were free to, anddid, elicit on redirect examination that a fear of retaliation was what motivated theiractions (see People vOchoa, 14 NY3d 180, 186 [2010]; People v Wright, 81 AD3d 1161, 1163 [2011], lvdenied 17 NY3d 803 [2011]). We will not second-guess defense counsel's strategicdecision to challenge the witnesses' identifications despite knowing that it would openthe door to rehabilitative efforts (see People v Honghirun, 29 NY3d 284, 290 [2017];People v Brewer, 266 AD2d 577, 579 [1999]). Moreover, we cannot faultdefense counsel for failing to either raise a meritless objection to those rehabilitativeefforts (see People v Allah,57 AD3d 1115, 1118 [2008], lv denied 12 NY3d 780 [2009]) or request alimiting instruction that was inappropriate, and potentially counterproductive, in theabsence of testimony regarding actual threats (see People v Wilson, 123 AD3d 626, 626 [2014], lvdenied 25 NY3d 1210 [2015]; People v Howard, 7 AD3d 314, 314 [2004], lvdenied 3 NY3d 675 [2004]; compare People v Randolph, 18 AD3d 1013, 1015-1016[2005]).[FN2] Therewas accordingly nothing ineffective in defense counsel's handling of the issue and, aftertaking a broader view of counsel's entire performance, we are satisfied that defendantreceived meaningful representation (see People v Baldi, 54 NY2d 137, 146-147[1981]; People v Perry, 148AD3d 1224, 1225-1226 [2017]).
Finally, although the sentences imposed by County Court were not harsh orexcessive, we do agree with defendant that they must all run concurrently."[C]onsecutive sentences are appropriate only 'when either the elements of the crimes donot overlap or if the facts demonstrate that the defendant's acts underlying the crimes areseparate and distinct' " (People v Rollins, 51 AD3d 1279, 1282 [2008], lvdenied 11 NY3d 930 [2009], quoting People v Ramirez, 89 NY2d 444, 451[1996]; see People v Dean,8 NY3d 929, 930-931 [2007]), and it is incumbent upon the People to prove thatsuch is the case (see People vBrahney, 29 NY3d 10, 15 [2017]). Here, the eyewitnesses heard approximatelyfive gunshots, four bullets were recovered from the victims and one bullet was recoveredfrom the bar. The medical testimony revealed that the intended victim was shot threetimes and that only one bullet lodged in his body, while another victim had severalthrough-and-through bullet wounds. There was no proof to show which, if any, of thevictims were struck by a bullet that did not first pass through another victim (see People v Jones, 41 AD3d507, 509 [2007], lv denied 9 NY3d 877 [2007]). Thus, in the absence ofevidence that any of the assault convictions arose from a "separate and distinct" pull ofthe trigger by defendant, the consecutive sentences on those convictions cannot stand(id.; see People vBattles, 16 NY3d 54, 59 [2010], cert denied 565 US 828 [2011]; People v Jones, 122 AD3d1161, 1161-1162 [2014]; cf. People v McKnight, 16 NY3d 43, 49-50 [2010]).
Clark, J.P., Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is modified, on the law, by directing that defendant's sentences shall runconcurrently rather than consecutively, and, as so modified, affirmed.
Footnote 1:Defendant raised aspecific objection to the proof of his identity in his trial motion to dismiss—amotion that he renewed at the close of his case—and we are satisfied that thequestion of whether legally sufficient proof established his identity is properly before usdespite his failure to repeat the objection with regard to each count (see People v Finch, 23 NY3d408, 412-413 [2014]; People v Gray, 86 NY2d 10, 19 [1995]).
Footnote 2:One witness testifiedthat he was reluctant to get involved because he was a musician and was concerned aboutproblems at future performances, while the other was worried because she knew friendsand family members of defendant.