| People v Meadows |
| 2020 NY Slip Op 02827 [183 AD3d 1016] |
| May 14, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kimani J. Meadows, Appellant. |
Mark A. Diamond, Albany, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Lynch, J.P. Appeal from a judgment of the County Court of Chemung County(Baker, J.), rendered July 9, 2018, upon a verdict convicting defendant of the crimes ofmurder in the second degree, criminal possession of a weapon in the second degree andcriminal possession of a weapon in the third degree.
In July 2017, defendant was charged by indictment with murder in the seconddegree, criminal possession of a weapon in the second degree (two counts) and criminalpossession of a weapon in the third degree. The charges stemmed from defendantshooting and killing the victim on a street in the Town of Elmira, Chemung County.After a jury trial, defendant was convicted as charged.[FN1] He was sentenced, as a second felonyoffender, to concurrent prison terms of 25 years to life for his conviction of murder in thesecond degree, 15 years, followed by five years of postrelease supervision, for hisconviction of criminal possession of a weapon in the second degree, and3
Defendant contends that his verdict was not based on legally sufficient evidence andwas against the weight of the evidence because the evidence did not show that he was theindividual who shot the victim or possessed the firearm. Initially, defendant failed topreserve his legal sufficiency challenge by making only a general objection at the closeof the People's proof (seePeople v McCollum, 176 AD3d 1402, 1403 [2019]). "Nevertheless, inreviewing defendant's argument that the verdict is against the weight of the evidence, thisCourt necessarily must ensure that the People proved each element of [each] crimebeyond a reasonable doubt" (People v Brinkley, 174 AD3d 1159, 1160 [2019] [citationsomitted], lv denied 34 NY3d 979 [2019]; see People v Harris, 177 AD3d 1199, 1200 [2019])."[W]hen undertaking a weight of the evidence review, we must first determine whether,based on all the credible evidence, a different finding would not have been unreasonableand, if not, then weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony todetermine if the verdict is supported by the weight of the evidence" (People v Hernandez, 180AD3d 1234, 1235 [2020] [internal quotation marks, brackets and citations omitted];see People v Fragassi, 178AD3d 1153, 1154 [2019], lv denied 34 NY3d 1128 [2020]).
As relevant here, a person is guilty of murder in the second degree when, "[w]ithintent to cause the death of another person, he [or she] causes the death of such person"(Penal Law § 125.25 [1]). A person is guilty of criminal possession of aweapon in the second degree when, "with intent to use the same unlawfully againstanother, such person . . . possesses a loaded firearm" (Penal Law§ 265.03 [1] [b]). Finally, a person is guilty of criminal possession of aweapon in the third degree when "[s]uch person commits the crime of criminalpossession of a weapon in the fourth degree as defined in [Penal Law§ 265.01 (1), (2), (3) or (5)] and has been previously convicted of anycrime" (Penal Law § 265.02 [1]). A person is guilty of criminal possessionof a weapon in the fourth degree when "[h]e or she possesses any firearm" (Penal Law§ 265.01 [1]).
At trial, text messages admitted into evidence revealed that, leading up to the day ofthe incident, on December 9, 2016, defendant messaged the victim asking her to "[c]ometo Elmira" and stating that he would pick her up from the bus station. The victimmessaged defendant that she was expecting to be living with him after arriving in Elmira,stating, "[t]his is about you and me for the rest of our lives." On December 11, 2016, thevictim messaged defendant informing him that someone had stolen her cell phone and,using another individual's cell phone, the victim informed defendant that she was on thebus to Elmira. Upon her arrival, the victim also used multiple other individuals' cellphones—which several witnesses testified to at trial—to ask defendant topick her up, but he was no longer willing to do so. One of the messages to defendantstated, "In Elmira because that's where you are" and "[l]ove ya." Eventually, the victimfound a shelter in Elmira and provided the name and phone number of defendant as heremergency contact. On December 14, 2016, the victim sent an email to defendant from alibrary that if he would not reply back, she would send a letter to his mother's address.That day, the victim also messaged defendant to meet her at the bus station. Later thatday, shortly after 2:00 p.m., the recovered video footage showed that, after a "greenish incolor" vehicle that had a shape of a Nissan Quest arrived and parked near the bus station,an individual walked towards the bus station and came back accompanied by anotherperson. As to what occurred later that day, several witnesses testified that they observed aminivan on the side of the intersection of Draht Hill Road and Jerusalem Hill Road inElmira—where the incident occurred—between 6:52 p.m. and 7:45 p.m.,which was confirmed by another video footage. One of the witnesses testified that heidentified that minivan as a dark-colored Nissan Quest. It was later established thatdefendant drove a green Nissan Quest.
The victim was discovered lying on the side of the road with no pulse around 8:00p.m. on December 14, 2016. The autopsy of the victim revealed that she had five entrywounds on her head, neck, right shoulder and abdomen. Her cause of death wasdetermined to be from gunshot wounds to her neck and head. The forensic pathologisttestified that his examination revealed that the victim was shot in the head at a range of"just a few inches, at most" and .22 caliber bullets were recovered from the body. Onewitness testified that, following the incident, he heard defendant discussing with others atan auto shop the news of a woman's body found on Draht Hill Road, at which timedefendant stated that the victim was bothering his mother and that "[s]he deserved it."Defendant's mother testified that the victim sometimes came to her home to speak todefendant, including in November 2016, when the victim again asked to see defendantand defendant's mother told the victim not to come by anymore, as she had a court orderagainst the victim—which defendant's mother admitted was not true.
Additional evidence placed defendant at the scene of the incident. A visualization ofdefendant's cell phone records revealed that, on the day of the incident, his phone wasgenerally in the vicinity of the bus station around 2:14 p.m., and then, between 6:47 p.m.and 7:38 p.m., his phone was moving away from Draht Hill Road or Jerusalem Hill Roadnorthbound. A State Police investigator with the Computer Crimes Unit testified thatdefendant's second cell phone contained pictures dated December 14, 2016, takenbetween 6:41 p.m. to 6:59 p.m., of the moon that additionally portrayed high powertowers; when the investigator took pictures on Draht Hill Road, they showed "the sametower configuration and landscape." Furthermore, tire impression evidence was alsorecovered from the scene of the crime, which revealed that defendant's right front tireshared the same tread and tread design with the impressions found at the scene.
A police officer testified that several days after the incident, defendant wasapprehended during a traffic stop. A search of defendant's vehicle revealed two cellphones and a backpack that contained a Smith and Wesson six-shot .22 caliber revolverwith black electrical tape wrapped around the grip and six bullets in the cylinder. Thebackpack also contained a plastic container holding bullets. Forensic examination of thegun determined that a DNA profile of defendant was a major contributor to the DNAdiscovered on the trigger's housing and the muzzle of the firearm and that his DNA was acontributor to the DNA found on the grip.
Defendant testified that he had known the victim for 13 years, and they kept incontact approximately every five years. Defendant admitted to exchanging text messageswith the victim leading up to the incident and that the victim was "bugging" his mother.As to the day of the incident, although initially he denied picking up the victim,defendant admitted that he picked up the victim from the bus station with his van at 2:15p.m. Defendant then explained that they headed to Lormore Street, where he resides, andthe victim left around 4:00 p.m. and he did not see her for the rest of the day. Defendantthen stated that he went to see some individuals to purchase marihuana, then "drovearound" Elmira to see the moon and went to take pictures of the moon near Draht HillRoad around 7:00 p.m. Defendant also admitted that it was his backpack found in the carbut denied ownership of the gun found in it.
Although a different verdict would not have been unreasonable, we find that theverdict is supported by the weight of the evidence. Turning first to defendant's convictionof murder in the second degree, the evidence shows that defendant invited the victim toElmira and exchanged text messages with her leading up to the incident. Defendant'smother testified, and defendant confirmed, that the victim was bothering his mother, andhe did not want the victim to keep contacting his mother. On the day of the incident,witness testimony, as well as other corroborating physical and circumstantial evidence,shows that defendant picked up the victim from the bus station and that, later that day, hewas at the scene of the incident during the time that the victim was killed—whichdefendant himself admitted. Thereafter, a firearm was recovered from defendant'svehicle, which bullets matched those recovered from the victim's body. In light of theforegoing, considering the evidence in a neutral light and according deference to thejury's credibility determinations, we find that the weight of the evidence supportsdefendant's conviction of murder in the second degree (see Penal Law§ 125.25 [1]; People v Demellier, 174 AD3d 1120, 1123 [2019], lvdenied 34 NY3d 980 [2019]).
Turning to defendant's convictions of criminal possession of a weapon in the secondand third degrees, the evidence showed that a .22 caliber gun that held six bullets in thecylinder was found in defendant's backpack—which defendant admitted belongedto him. Bullets found with the gun matched the characteristics of expended .22 caliberbullets recovered from the victim's body. Moreover, defendant's DNA was a majorcontributor to the DNA found on the trigger's housing and the muzzle of the firearm anda contributor to the DNA found on the grip. Notwithstanding defendant's conflictingtestimony that the gun did not belong to him, we find that the weight of the evidencesupports his convictions of criminal possession of a weapon in the second and thirddegrees (see Penal Law §§ 265.02 [1]; 265.03 [1] [b]; People v McCoy, 169 AD3d1260, 1264 [2019], lv denied 33 NY3d 1033 [2019]; People v Johnson, 79 AD3d1264, 1265 [2010], lv denied 16 NY3d 832 [2011]).
Next, defendant contends that County Court erred in allowing the testimonyregarding defendant's purchase of marihuana. "[I]t is well settled that evidence ofuncharged crimes or prior bad acts may be admitted where they fall within the recognizedMolineux exceptions—motive, intent, absence of mistake, common placeor scheme and identity—or where such proof is inextricably interwoven with thecharged crimes, provides necessary background or completes a witness's narrative" (People v Saunders, 176 AD3d1384, 1390 [2019] [internal quotation marks and citations omitted]; see People v Pitt, 170 AD3d1282, 1284 [2019], lv denied 33 NY3d 1072 [2019]). Here, Sarah Starbucktestified that she knew defendant to have engaged in marihuana transactions with a mannamed Niko Parker in 2016.[FN2] After Starbuck's testimony, CountyCourt instructed the jury that her testimony regarding defendant's purchase or use ofmarihuana should not be considered in regard to whether defendant is guilty of theuncharged crimes and was "solely for the limited purposes of explaining backgroundinformation of how [Starbuck] may have known . . . defendant." Thislimiting instruction was once again reiterated during the jury charge. In light of theforegoing, we find that the evidence regarding defendant's purchase of marihuana wasrelevant to establish background of Starbuck's relationship with defendant, as well as toaid the jury in understanding defendant's whereabouts on the day of the incident and histext messages to Parker (see People v Saunders, 176 AD3d at 1390; People v Womack, 143 AD3d1171, 1173 [2016], lv denied 28 NY3d 1151 [2017]). Furthermore, the courtgave proper limiting instructions to minimize the prejudicial effect of the testimony (see People v Gannon, 174AD3d 1054, 1059 [2019], lv denied 34 NY3d 980 [2019]).
Defendant also contends that County Court erred in denying his motion to suppresscertain statements obtained during police interrogation. First, to the extent that defendantcontends that his Miranda rights were violated when his interrogation continueddespite his invocation of his right to counsel, we have already considered this issue indefendant's prior appeal related to another incident and held that "defendant's isolatedstatement of 'I could get a lawyer' did not constitute an unequivocal request for counsel"(People v Meadows, 180AD3d 1244, 1245 [2020]).[FN3] To the extent that defendant contendsthat the police should have readministered his Miranda rights before the secondinterrogation, we find this argument without merit. "When a defendant is in continuouscustody and not subjected to coercive tactics, delays between the provision ofMiranda warnings and later questioning will not necessarily make a defendant'sstatements involuntary unless the delay is excessive" (People v Carelli, 41 AD3d 1092, 1093 [2007]). "[D]elaysof as much as 11 hours between Miranda warnings and subsequent questioninghave been countenanced" (id.; see People v Gause, 38 AD3d 999, 1000 [2007], lvdenied 9 NY3d 865 [2007]). Here, on December 21, 2016 at 4:22 p.m., defendantwas administrated his Miranda rights, which he waived. After the interview,defendant was left alone for several hours before his interview recommenced atapproximately 10:30 p.m. In light of the fact that defendant was properly administeredhis initial Miranda rights and his custody was continuous, an approximatefive-hour break between interviews was not so excessive as to require a readministrationof Miranda warnings (see People v Gause, 38 AD3d at 1000; People v Lowin, 36 AD3d1153, 1155 [2007], lv denied 9 NY3d 847 [2007]).
Turning to defendant's contentions of prosecutorial misconduct during summation, asdefendant concedes, he failed to preserve his arguments (see People v Scippio, 144AD3d 1184, 1187 [2016], lv denied 28 NY3d 1150 [2017]). Were thesecontentions properly before us, we would find that the challenged comments were eithermade in response to defendant's summation or constituted fair comment on the evidenceat trial or, even if improper, "were not so pervasive or flagrant as to require a reversal"(People v Andrade, 172AD3d 1547, 1553 [2019] [internal quotation marks and citations omitted], lvdenied 34 NY3d 928 [2019]; see People v Johnson, 151 AD3d 1462, 1466 [2017], lvdenied 30 NY3d 1106 [2018]).
Finally, defendant contends that defense counsel was ineffective by making variouspretrial and trial errors. "A claimed violation of the constitutional right to the effectiveassistance of counsel will not survive judicial scrutiny so long as the evidence, the law,and the circumstances of a particular case, viewed in totality and as of the time of therepresentation, reveal that the attorney provided meaningful representation" (People v Houze, 177 AD3d1184, 1188-1189 [2019] [internal quotation marks and citations omitted], lvdenied 34 NY3d 1159 [2020]). Here, defendant contends that his counsel wasineffective because he failed to submit to the jury that defendant's Miranda rightswere violated, failed to renew a suppression motion after learning that defendant was notgiven a second Miranda warning and failed to object to the prosecutor's impropercomments during summation. However, as discussed above, these arguments lack merit,and "[c]ounsel's failure to make a motion or argument that has little or no chance ofsuccess does not constitute the ineffective assistance of counsel" (People v Bostic, 174 AD3d1135, 1137 [2019] [internal quotation marks, brackets and citations omitted], lvdenied 34 NY3d 1015 [2019]; see People v Pratt, 162 AD3d 1202, 1203 [2018], lvdenied 32 NY3d 940 [2018]). Thus, we are satisfied that defendant was provided theeffective assistance of counsel.
Mulvey, Devine, Aarons and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:At sentencing, CountyCourt dismissed count 3 of the indictment, charging defendant with criminal possessionof a weapon in the second degree.
Footnote 2:Although during theMolineux hearing, County Court granted, over defendant's objection, the People'srequest to present the testimony of Parker regarding him selling marihuana to defendant,Parker did not testify; instead, Starbuck testified that she had observed Parker sellmarihuana to defendant. Thereafter, defense counsel agreed to submit a circumstantialevidence instruction as to the Molineux evidence that came through Starbuck'stestimony, instead of objecting to the fact that it was Starbuck's, not Parker's, testimonythat was presented.
Footnote 3:Defendant's prior appealconcerned his October 2017 conviction of attempted murder in the second degree, assaultin the first degree, three counts of criminal possession of a weapon in the second degreeand criminal use of a firearm in the first degree, stemming from an unrelated incident onDecember 20, 2016 (People vMeadows, 180 AD3d 1244, 1244 [2020]). At a Huntley hearing relatedto this appeal, the parties stipulated to the testimony and facts as adduced at a priorsuppression hearing regarding the December 20, 2016 incident. County Court denieddefendant's motion finding that the statements were admissible. Defendant appealed froman October 2017 judgment of conviction, challenging, among other things, CountyCourt's suppression decision (id. at 1245).