| People v Kelley |
| 2007 NY Slip Op 10192 [46 AD3d 1329] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jemar Kelley,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered May 18, 2005. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree, attempted murder in the second degree, reckless endangerment in the first degree,criminal possession of a weapon in the second degree (three counts), criminal possession of aweapon in the third degree (three counts), and criminal use of a firearm in the first degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofone count each of murder in the second degree (Penal Law § 125.25 [1]), attemptedmurder in the second degree (§§ 110.00, 125.25 [1]), reckless endangerment in thefirst degree (§ 120.25), and criminal use of a firearm in the first degree (§ 265.09[1]), and three counts each of criminal possession of a weapon in the second degree (former§ 265.03 [2]) and criminal possession of a weapon in the third degree (§ 265.02 [1],[4]), arising out of two separate incidents. We reject the contention of defendant that theconviction of murder in the second degree is not supported by legally sufficient evidence.Affording the People every favorable inference (see People v Contes, 60 NY2d 620, 621[1983]), we conclude that the evidence that the holster containing defendant's DNA was found atthe crime scene next to the victim's bicycle, along with several spent shell casings, and thetestimony of the eyewitness describing the shooter as an individual generally matchingdefendant's physical appearance is legally sufficient to support the murder conviction (see People v Lopez, 9 AD3d 692,694 [2004]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Althoughdefendant is correct that the People did not present evidence with respect to the length of timethat the holster was at the crime scene, the testimony of a police detective that the type of holsterfound at the crime scene had a tendency to "stick" to the gun when the gun is drawn provided areasonable explanation for the presence of the holster at the crime scene. The verdict with respectto the murder count also is not against the weight of the evidence. "Issues of credibility andidentification, including the weight to be given the backgrounds of the People's witnesses andinconsistencies in their testimony, were properly considered by the jury and there is no basis fordisturbing its determinations" (People vGarrick, 11 AD3d 395, 396 [2004], lv denied 4 NY3d 744, 798 [2004]). Wecannot say that the jury's verdict with respect to the murder count is[*2]"plainly unjustified by the evidence" (People v Van Akin,197 AD2d 845, 846 [1993]).
Also contrary to defendant's contention, the evidence is legally sufficient to support theconviction of attempted murder. The passenger in the victim's vehicle testified that someone indefendant's car who was wearing a jacket with a red sleeve fired multiple gunshots at the victim'svehicle. The passenger further testified that the red sleeve he observed was the same as the sleeveon the baseball jacket worn by defendant earlier that day. In addition, a police officer testifiedthat, while the victim was "yelling" and "moaning" because she was suffering from multiplegunshot wounds and in pain, she identified defendant as the shooter. That testimony was properlyadmitted under the excited utterance exception to the hearsay rule, inasmuch as the victim'sidentification was "not made under the impetus of studied reflection" (People v Edwards,47 NY2d 493, 497 [1979]; see People v Cotto, 92 NY2d 68, 78-79 [1998]; People v McClary, 21 AD3d 1427,1428 [2005], lv denied 5 NY3d 884 [2005]; People v Hasan, 17 AD3d 482 [2005], lv denied 5 NY3d882 [2005]). The officer arrived at the crime scene only one or two minutes following the 911call and, when the victim was placed in the ambulance and the officer asked the victim who shother, the victim immediately responded, "during her cries of pain," that it was defendant. Onlyfive minutes passed between the time the officer arrived at the scene and the time the ambulancedeparted for the hospital. We thus conclude, based on the passenger's testimony and the officer'stestimony that the victim identified defendant as the person who shot her, that the evidence islegally sufficient to support the attempted murder count (see People v Fratello, 243 AD2d340 [1997], affd 92 NY2d 565 [1998], cert denied 526 US 1068 [1999];People v Breland, 259 AD2d 1040 [1999], lv denied 93 NY2d 966 [1999];see generally Bleakley, 69 NY2d at 495). The verdict also is not against the weight of theevidence with respect to that count. The jury's resolution of credibility and identification issues"is entitled to great weight" (People v Cliff, 230 AD2d 865, 866 [1996], lv denied88 NY2d 1067 [1996], cert denied 520 US 1158 [1997]), and "[t]here is no indication inthe record before us that the jury failed to give the evidence the weight it should be accorded" (People v Drake, 17 AD3d 1154[2005], lv denied 5 NY3d 788 [2005]).We reject the further contention of defendant that Supreme Court erred in denying his motionto sever the counts of the indictment relating to the murder incident from the counts relating tothe attempted murder incident. Where counts of an indictment are properly joined because "eitherproof of the first offense would be material and admissible as evidence in chief upon a trial of thesecond, or proof of the second would be material and admissible as evidence in chief upon a trialof the first" (CPL 200.20 [2] [b]), the trial court has no discretion to sever counts pursuant toCPL 200.20 (3) (see People v Bongarzone, 69 NY2d 892, 895 [1987]; People vLane, 56 NY2d 1, 7 [1982]). Here, the offenses were properly joined pursuant to CPL 200.20(2) (b), and thus the court "lacked statutory authority to grant defendant's [severance] motion" (People v Murphy, 28 AD3d 1096,1097 [2006], lv denied 7 NY3d 759, 760 [2006]; see Bongarzone, 69 NY2d at895; People v Scott, 276 AD2d 380 [2000], lv denied 96 NY2d 738 [2001]). Theevidence presented at the severance hearing established that defendant told the attempted murdervictim, who at the time was his girlfriend, that he previously committed the murder, and thatstatement was material and relevant on the issue of defendant's motive and intent thereafter toattempt to kill her (see CPL 220.20 [2] [b]; People v Garcia, 126 AD2d 667[1987], lv denied 69 NY2d 880 [1987]).
Defendant failed to preserve for our review his contention that the conviction ofcriminal use of a firearm in the first degree should be reversed because the use of the firearm inthe attempted murder conviction cannot also be the predicate offense for criminal use of afirearm in the first degree (see CPL 470.05 [2]), and we decline to exercise our power toreview that contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]). We further reject defendant's challenge to the severity of the sentence. "In view of thebrutal and senseless nature of the crime[s]," the aggregate sentence of 50 years to life is notunduly harsh or severe (People vWalker, 12 AD3d 1107, 1108 [2004], lv denied 4 NY3d 749, 804 [2004]).[*3]Finally, we note that the certificate of convictionincorrectly reflects that defendant was convicted under count seven of the indictment of criminalpossession of a weapon in the third degree in violation of Penal Law § 265.02 (4), and itmust therefore be amended to reflect that he was convicted under Penal Law § 265.02 (1)(see People v Martinez, 37 AD3d1099, 1100 [2007], lv denied 8 NY3d 947 [2007]). Present—Hurlbutt, J.P.,Gorski, Smith, Lunn and Pine, JJ.