| People v Young |
| 2021 NY Slip Op 00206 [190 AD3d 1087] |
| January 14, 2021 |
| Appellate Division, Third Department |
[*1](January 14, 2021)
| The People of the State of New York,Respondent, v Sylvester Young, Also Known as Rick, Eric S. Young, Slick and JeromeYoung, Appellant. |
Theodore J. Stein, Woodstock, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Egan Jr., J. Appeals (1) from a judgment of the County Court of Schenectady County(Murphy III, J.), rendered November 16, 2015, upon a verdict convicting defendant of the crimesof murder in the second degree, assault in the first degree, criminal possession of a weapon in thesecond degree (four counts), criminal possession of a weapon in the third degree (two counts)and tampering with physical evidence (two counts), (2) by permission, from an order of saidcourt, entered March 31, 2017, which denied defendant's motion pursuant to CPL 440.10 tovacate the judgment of conviction, after a hearing, and (3) by permission, from an order of saidcourt (Sira, J.), entered May 16, 2018, which denied defendant's motion pursuant to CPL 440.10to vacate the judgment of conviction, without a hearing.
At approximately 4:50 a.m. on January 25, 2009, police responded to a 911 call of a reportedshooting at an unlicensed after-hours bar, formerly known as the Tip Toe Inn, located in the Cityof Schenectady, Schenectady County. Upon arrival, police encountered Delesia Davidson,standing outside the bar with a gunshot wound to her back, and Jumez Lee, also known asHoliday, lying inside the bar with a gunshot wound to his head. Both victims were transported tothe hospital; Davidson recovered from her wounds, but Lee was pronounced dead later that day.Four days later, defendant was arrested on unrelated drug charges and, as part of thatinvestigation, police questioned him regarding the subject shooting, but he denied anyinvolvement.[FN1] InNovember 2009, a grand jury was convened with respect to the shooting but, in June 2012,County Court (Drago, J.) granted the People's application to withdraw the case from the grandjury and re-present it to a second grand jury (see CPL 190.75 [3]). The People thereafterre-presented the case to a second grand jury and, in April 2014, defendant was charged in a10-count indictment with murder in the second degree, assault in the first degree, criminalpossession of a weapon in the second degree (four counts), criminal possession of a weapon inthe third degree (two counts) and tampering with physical evidence (two counts).
Following a seven-week jury trial in 2015, defendant was convicted as charged. He wasthereafter sentenced, as a persistent felony offender, to an aggregate prison term of 90 years tolife. Defendant moved to vacate the judgment of conviction pursuant to CPL 440.10 and,following a hearing, in March 2017, County Court (Murphy III, J.) denied defendant's motionfinding, among other things, that the People's investigation and resulting preindictment delay didnot deny defendant his constitutional due process rights or his constitutional right to a speedytrial. Defendant subsequently filed a second CPL 440.10 motion seeking to vacate his judgmentof conviction and, in May 2018, County Court (Sira, J.) denied the motion, without a hearing.Defendant appeals from the judgment of conviction and, by permission, [*2]from the orders denying his postjudgment motions.[FN2]
Defendant contends that the integrity of the grand jury process was impaired as the Peopleabandoned its presentation of the case to a first grand jury and impermissibly re-presented it to asecond grand jury without obtaining court authorization (see CPL 190.75 [3]). Pursuantto CPL 190.75 (3), the People may not re-present charges—that have either beenpreviously dismissed or withdrawn from the grand jury in such a manner as to constitute a defacto dismissal—to another grand jury unless the court authorizes such re-submission (see People v Davis, 17 NY3d 633,637 [2011]). The People presented the case to the first grand jury on November 6, 2009,presenting the testimony of three witnesses. The People thereafter continued to investigate thecase and no additional evidence was presented to the first grand jury. On June 5, 2012, thePeople submitted an application seeking court authorization (see CPL 190.75 [3]) towithdraw from the first grand jury and re-present to a second grand jury on the ground that theyhad "acquired substantial new evidence not available . . . at the time of the partialpresentation to the first grand jury." County Court (Drago, J.) granted the People's applicationdetermining that the People's withdrawal from the first grand jury did not constitute a dismissaland that, even if it did, the People had acquired new evidence not previously available to themsuch that re-presentation to a second jury was appropriate. Thus, contrary to defendant'sassertion, the People did, in fact, seek court authorization prior to re-presenting the case to thesecond grand jury. There being no indication that the People made said application "in anythingother than good faith," we discern no error of law in this regard (People v Ballowe, 173 AD3d1666, 1668 [2019] [internal quotation marks and citations omitted]; see CPL 190.75[3]).
Defendant next contends that the jury's verdict is not supported by legally sufficient evidenceand is against the weight of the evidence. Defendant failed to preserve his challenge to the legalsufficiency of the evidence, however, as he failed to renew his motion for a trial order ofdismissal after resting his case (seePeople v Kolupa, 13 NY3d 786, 787 [2009]; People v Saunders, 176 AD3d 1384, 1385 [2019], lv denied35 NY3d 973 [2020]). Nevertheless, inasmuch as defendant has challenged the jury verdict asbeing against the weight of the evidence, we will necessarily determine as part of said reviewwhether all of the elements of the charged crimes were proven at trial beyond a reasonable doubt(see People v Trappler, 173 AD3d1334, 1335 [2019], lv denied 34 NY3d 985 [2019], cert denied 589 US&mdash, 140 S Ct 1281 [2020]). To that end, "[w]hen 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 [*3]probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony to determine if the verdict issupported by the weight of the evidence" (People v Vandenburg, 189 AD3d 1772, 1773 [2020] [internal quotation marks, brackets and citations omitted]).
As relevant here, to be found guilty of murder in the second degree (count 1), the Peoplewere required to prove that, "[w]ith intent to cause the death of another person, [the defendant]cause[d] the death of such person or of a third person" (Penal Law § 125.25 [1]). Tobe found guilty of assault in the first degree (count 2), the People were required to prove that,"[w]ith intent to cause serious physical injury to another person, [the defendant] cause[d] suchinjury to such person or to a third person by means of a deadly weapon or a dangerousinstrument" (Penal Law § 120.10 [1]). With respect to counts 3 and 4, "[a] person isguilty of criminal possession of a weapon in the second degree when . . . with intentto use the same unlawfully against another, such person . . . possesses a loadedfirearm" (Penal Law § 265.03 [1] [b]). With respect to counts 5 and 6, "[a] person isguilty of criminal possession of a weapon in the second degree when . . . suchperson possesses any loaded firearm" outside of his or her home or place of business (Penal Law§ 265.03 [3]). With respect to counts 7 and 8, "[a] person is guilty of criminalpossession of a weapon in the third degree when . . . such person commits the crimeof criminal possession of a weapon in the fourth degree . . . and has been previouslyconvicted of any crime" (Penal Law § 265.02 [1]).[FN3] Finally, with respect to counts 9 and 10, "[a]person is guilty of tampering with physical evidence when . . . [b]elieving thatcertain physical evidence is about to be produced or used in an official proceeding or aprospective official proceeding, and intending to prevent such production or use, he [or she]suppresses it by any act of concealment, alteration or destruction, or by employing force,intimidation or deception against any person" (Penal Law § 215.40 [2]).
The evidence at trial established that, in 2005, defendant was living in Schenectady sellingdrugs. In June of that year, defendant was with his friend and fellow gang member, Carl Henley,also known as Boone, when Henley was shot and wounded in Schenectady. Following theshooting, defendant indicated that he intended to seek revenge against Lee, who he blamed forthe shooting. Approximately three months later, defendant was the passenger in a vehicle thatwas stopped for a Vehicle and Traffic Law violation during the course of which he fled thepolice, dropping a .38 Smith & Wesson handgun out of his pant leg. He was later arrestedand admitted that he obtained the weapon "because he had a problem with a guy in Schenectady."He subsequently pleaded guilty to attempted criminal possession of a weapon [*4]in the third degree and served two years in prison. Following hisrelease, defendant resumed selling drugs in Schenectady and obtained two .45 caliberpistols.
At approximately 3:20 a.m. on the day of the shooting, defendant arrived at the former TipToe Inn with one of his friends, Lisa Medina. Defendant was armed with two .45 caliber pistolsbut, upon learning that male patrons entering the bar were being searched for weapons, he passedthe guns to Medina who hid them in her waistband. Once inside, Medina sat on defendant's lapand defendant retrieved the pistols. After defendant observed Lee in the bar and Medinaconfirmed his identity, defendant approached Lee, grabbed him by the collar and shot him in theback of the head. The bullet traveled through Lee's skull, exited through his left cheek, struckDavidson in the back, traveled through her chest and came to rest in her bra. Defendant fled thebar through a side door, dropped one of the .45 caliber pistols in the bar's parking lot and droveback to Medina's apartment. Once there, he met up with a friend who had also been at the barwith him, borrowed some clothes to change into and bagged up the clothes that he had beenwearing. He then took his remaining pistol, placed it into his friend's toolbox and subsequentlytold him to dispose of it. Defendant then had Medina call Henley "to tell him the job was done."Defendant later told his friends that he had "popped the guy that shot [Henley]" and reenacted theshooting. Defendant also boasted about killing a member of a rival gang to two inmates while hewas incarcerated on the drug charges.
Upon investigation, police discovered a single expended .45 caliber shell casing a few feetfrom where Lee's body had fallen and the bullet retrieved from Davidson's bra at the hospital wasdetermined to be a .45 caliber. Police also located a .45 caliber cartridge under the mattress ofdefendant's bed. Laboratory testing determined that the pistol retrieved from the bar's parking lotwas loaded, operational and contained defendant's DNA, but was not the gun from which theshot that killed Lee and wounded Davidson was fired. The murder weapon was never found.
Based on the foregoing, although a different verdict would not have been unreasonable,viewing the evidence in a neutral light, we find that there is ample proof in the recorddemonstrating that defendant possessed two .45 caliber pistols, shot and killed Lee with therequisite intent to kill, shot and wounded Davidson and tampered with physical evidence after hefled the scene of the crime (see People vDemellier, 174 AD3d 1120, 1122-1123 [2019], lv denied 34 NY3d 980 [2019]).To the extent that defendant contends that the witnesses who implicated him were not crediblegiven that they had motivation to fabricate their stories, these credibility issues were fullyexplored at trial, were subject to cross-examination and posed credibility questions for the jury toresolve (see People [*5]v Smith, 174 AD3d 1039, 1042-1043 [2019], lvdenied 35 NY3d 1097 [2020]; People v Criss, 151 AD3d 1275, 1279 [2017], lv denied 30NY3d 979 [2017]). Accordingly, giving deference to the jury's credibility determinations, we findthat the jury gave the evidence the appropriate weight that it deserved, and we conclude thatdefendant's convictions on all counts are supported by the weight of the evidence (see People v White-Span, 182 AD3d909, 913-914 [2020], lv denied 35 NY3d 1071 [2020]).
We find unavailing defendant's contention that he was denied his right to a fair trial as aresult of the Molineux ruling issued by County Court (Murphy III, J.). "Althoughevidence of prior uncharged crimes or bad acts may never be presented for the sole purpose ofestablishing a defendant's criminal propensity or bad character" (People v Gannon, 174 AD3d 1054,1058 [2019] [internal quotation marks and citations omitted], lv denied 34 NY3d 980[2019]), such evidence "may be admitted where [it] fall[s] within the recognizedMolineux exceptions—motive, intent, absence of mistake, common plan orscheme and identity—or where such proof is inextricably interwoven with the chargedcrimes, provides necessary background or completes a witness's narrative" (People v Anthony, 152 AD3d1048, 1051 [2017] [internal quotation marks and citations omitted], lv denied 30NY3d 978 [2017]; see People vBall, 154 AD3d 1060, 1064 [2017]).
Here, the evidence regarding defendant's gang affiliation, his use of aliases, his acquisitionand possession of weapons and his prior drug sales and incarceration was inextricablyinterwoven with the subject crimes for which he was charged, as this evidence providednecessary background information regarding the nature of defendant's relationships with keywitnesses and the victims. Said evidence explained not only how defendant knew Lee, but wasrelevant and material to establishing several Molineux exceptions, including defendant'sidentity as the shooter and his motive for the killing, and provided context for those activities thatoccurred both before and after the shooting (see People v Davis, 144 AD3d 1188, 1189-1190 [2016], lvdenied 28 NY3d 1144 [2017]; People v Johnson, 106 AD3d 1272, 1274 [2013], lv denied21 NY3d 1043 [2013]). County Court appropriately ruled that the probative value of suchevidence outweighed the potential for undue prejudice and, although the court did not provide alimiting instruction each and every time evidence of defendant's bad acts were referenced, we aresatisfied that any resulting prejudice was adequately minimized based on the court's issuance ofperiodic limiting instructions throughout trial, as well as during its final instructions to the jury(see People v Bailey, 32 NY3d70, 83-84 [2018]; People vHilts, 187 AD3d 1408, 1414-1415 [2020]).
Turning to defendant's first CPL 440.10 motion, we are unpersuaded that the five-yearpreindictment delay between the [*6]January 2009 commission ofthe subject crimes and defendant's April 2014 indictment deprived him of his constitutionalrights to due process and a speedy trial. It is well settled that "an unreasonable delay inprosecuting a defendant constitutes a denial of due process and that an unjustifiable delay incommencing prosecution may require dismissal even though no actual prejudice to the defendantis shown" (People v Morris, 25AD3d 915, 916 [2006] [internal quotation marks and citation omitted], lv denied 6NY3d 851 [2006]; see People vDecker, 13 NY3d 12, 14 [2009]; People v Singer, 44 NY2d 241, 253-254[1978]). The factors to be considered in determining the reasonableness of the delay include notonly the extent of the delay, but the reason for the delay, the nature of the underlying charges, anyextended period of pretrial incarceration and any prejudice or impairment of the defenseattributable to the delay (see People vHeimroth, 181 AD3d 967, 969-970 [2020], lv denied 35 NY3d 1027 [2020])."Where, as here, the delay is protracted, the burden is on the People to establish good cause" (People v Rogers, 157 AD3d 1001,1004 [2018] [citations omitted], lv denied 30 NY3d 1119 [2018]; see People vDecker, 13 NY3d at 14; People vMontague, 130 AD3d 1100, 1101 [2015], lv denied 26 NY3d 1090 [2015]).
Although the five-year preindictment delay at issue was lengthy, the evidence at the CPLarticle 440 hearing established that the People had a good faith basis justifying the delay inprosecution as they were confronted with numerous uncooperative witnesses, conflictingaccounts of how the shooting occurred and complex DNA profiles on the pistol that wasretrieved from the bar's parking lot. The charges that defendant was facing were serious,including 10 felonies, with a top charge of murder in the second degree. Defendant, meanwhile,was already incarcerated on unrelated felony drug charges during this time period and, therefore,his liberty interest was not affected, and he failed to demonstrate how his defense was otherwiseprejudiced or impaired as a result of the delay. Based on the foregoing, we find that defendantwas not denied his constitutional rights to due process or a speedy trial. His related claim that hewas denied the effective assistance of counsel based on the failure of his trial counsel to file apretrial motion to dismiss based upon this preindictment delay lacks merit inasmuch asineffective assistance of counsel does not result from counsel's failure to file a motion that haslittle or no chance of success (see Peoplev Caban, 5 NY3d 143, 152 [2005]; People v Weatherspoon, 86 AD3d 792, 793 [2011], lvdenied 17 NY3d 905 [2011]).
Finally, the arguments raised in defendant's supplemental pro se brief do not requireextended discussion. Defendant's jurisdictional challenge to the underlying felony complaintswas rendered academic as said accusatory instruments were superseded by a valid indictment(see People v Drayton[*7], 183 AD3d 1008, 1012 [2020],lv denied 35 NY3d 1065 [2020]). Moreover, we reject his claim that he was denied hisconstitutional right to equal protection of law based upon selective prosecution inasmuch as he"failed to demonstrate that the law was not applied to others similarly situated and that theselective application of the law was deliberately based upon an impermissible standard such asrace, religion or some other arbitrary classification" (People v Brown, 52 AD3d 943, 945 [2008] [internal quotationmarks, brackets and citations omitted], lv denied 11 NY3d 735 [2008]). To the extent notspecifically addressed, defendant's remaining contentions have been reviewed and found to bewithout merit.
Garry, P.J., Mulvey, Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that the judgmentand orders are affirmed.
Footnote 1:Following his January 2009arrest on drug charges, defendant pleaded guilty in August 2009 to two counts of criminal sale ofa controlled substance in the third degree and was sentenced to a period of incarceration. He wasincarcerated throughout the duration of these proceedings.
Footnote 2:Defendant has not raised anyissue in either of his briefs with respect to the denial of his second CPL 440.10 motion and,therefore, we deem his appeal in that regard to have been abandoned (see People v Ellis, 182 AD3d 791,792 n 2 [2020], lv denied 35 NY3d 1026 [2020]).
Footnote 3:"A person is guilty of criminalpossession of a weapon in the fourth degree when . . . [h]e or she possesses anyfirearm" (Penal Law § 265.01 [1]).