| People v Cherry |
| 2007 NY Slip Op 10419 [46 AD3d 1234] |
| December 27, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kevin Cherry,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered January 20, 2005, upon a verdict convicting defendant of the crimes of murder in thefirst degree (three counts), burglary in the first degree, robbery in the first degree (two counts),murder in the second degree (two counts), burglary in the second degree and attempted robberyin the first degree.
In March 2001, two men pushed their way into an apartment, threatened two residents with ahandgun, bound the residents with electrical tape and stole several items, including a cellularphone and a loaded 12-gauge shotgun. In a separate incident in August 2001, two victims werekilled by shotgun wounds to the back and head. Police linked defendant to both crimes, leadingto a 10-count indictment charging him with burglary in the first degree, burglary in the seconddegree, and robbery in the first degree (two counts) related to the March incident, and murder inthe first degree (three counts), murder in the second degree (two counts) and attempted robberyin the first degree related to the August homicides. A jury convicted defendant on all counts.County Court imposed the maximum sentence on each count, with all sentences to runconsecutively. Defendant appeals.
County Court properly denied defendant's motion to sever the counts related to the Marchincident from those related to the August homicides. The People may join multiple [*2]offenses, "even though based on separate and distinct criminaltransactions, . . . if they are of such a nature that proof of either offense would bematerial and admissible as evidence-in-chief upon the trial of the other" (People vBongarzone, 69 NY2d 892, 895 [1987]; see CPL 200.20 [2] [b]; People v Griffin, 26 AD3d 594,594-595 [2006], lv denied 7 NY3d 756 [2006]). Evidence tying the stolen shotgun to thehomicides rendered proof of the March incident material and admissible to the August incident,especially on the issue of the killer's identity (see People v Murphy, 28 AD3d 1096, 1097 [2006], lvdenied 7 NY3d 760 [2006]; People v Alvarez, 150 AD2d 470, 470 [1989], lvdenied 74 NY2d 804 [1989]). Once the offenses were properly joined, the court lackedauthority to order severance (see CPL 200.20 [3]; People v Bongarzone, 69NY2d at 895).
The convictions were supported by legally sufficient evidence and not against the weight ofthe evidence. Defendant acknowledged that proof of the crimes existed; the only issue was theidentity of the perpetrator or perpetrators. Regarding the March robbery, one of the apartmentresidents positively identified defendant as the robber who threatened the victims with a handgunand stole the cellular phone and shotgun. Although the other resident could not be certainregarding his identification of defendant, he testified that he believed defendant was one of therobbers. The two residents' testimony revealed a single version of the robbery. Additionally, acall made minutes after the robbery on the stolen cellular phone was placed to defendant'sgirlfriend.
Regarding the August homicides, a ballistics expert matched the four shotgun shell casingsfound at the scene to each other and to a casing retrieved by the owner of the shotgun stolen inMarch. Calls from the cellular phone of one victim were placed to defendant's uncle and hisgirlfriend. Calls from pay phones between the crime scene and defendant's family home wereplaced to his uncle's girlfriend, who testified that defendant called for jumper cables prior to theshootings and for a ride afterward. The victims were found in a car with the hood up, motorrunning and jumper cables still attached to the battery. Defendant wrote anonymous letters to theDistrict Attorney and court stating that he was at the scene but did not commit the murders; henoted that some friends in the Bloods gang shot the victims and the motives were the drug tradeand respect. A witness also testified that on the night of the murders she overheard defendantstate, "I just shot two people." Viewing this evidence in a light most favorable to the People, itwas sufficient to establish that defendant committed all charged crimes (see People vBleakley, 69 NY2d 490, 495 [1987]; People v Rivera, 42 AD3d 587, 588-589 [2007], lv denied9 NY3d 880 [2007]). While a different verdict would not have been unreasonable, after grantingdue deference to the jury's credibility determinations we find the verdict in accord with theweight of the evidence (see People vRomero, 7 NY3d 633, 643-644 [2006]).
County Court did not err in admitting testimony by an expert on gangs. The detectivedescribed the geographic areas ascribed to the local gang, the structure, common identifiers andbasic background on gangs. This information provided a context for defendant's letters whichidentified him as a member of the gang and explained a possible motive, namely the perceiveddisrespect by one victim who was not a gang member but sold drugs in an area controlled by thegang (see People v Faccio, 33 AD3d1041, 1042 [2006], lv denied 8 NY3d 845 [2007]; People v Williams, 28 AD3d1005, 1008 [2006], lv denied 7 NY3d 819 [2006]; see also People vEdwards, 295 AD2d 270, 271 [2002], lv denied 99 NY2d 557 [2002]). While thecourt should have provided the jury a limiting instruction (see People v Brown, 97 NY2d500, 506 [2002]), that error was waived by defendant's failure to request such an instruction orobject to the court's final charge (seePeople v Wright, 5 AD3d 873, 876-877 [2004], lv denied 3 NY3d 651 [2004];[*3]People v Mendez, 304 AD2d 481, 482 [2003], lvdenied 100 NY2d 584 [2003]).
Contrary to defendant's contention that the jury charge on identity was insufficient, CountyCourt stated at least three times during its charge that all elements, including defendant's identityas the perpetrator, had to be proven beyond a reasonable doubt, and defendant did not request anymore specific charge (see People v Knight, 87 NY2d 873, 874-875 [1995]; People v Mane, 36 AD3d 1079,1081 [2007], lv denied 8 NY3d 987 [2007]; People v Barton, 301 AD2d 747,747-748 [2003], lv denied 99 NY2d 625 [2003]). Eyewitness identification of the Marchcrimes and an admission of the August crimes constituted direct evidence, rendering the chargeon direct and circumstantial evidence correct (see People v Roldan, 88 NY2d 826, 827[1996]; People v Golston, 13 AD3d887, 889-890 [2004], lv denied 5 NY3d 789 [2005]). The admission of a bulletproofvest and ammunition seized from defendant's grandmother's house was error because those itemswere not adequately connected to defendant, but their admission was harmless here (see People v Martin, 8 AD3d 883,887 [2004], lv denied 3 NY3d 677 [2004]).
The prosecutor did not commit misconduct in his summation. His statements constituted faircomment on the evidence or a reasonable response to the defense summation (see People v Grady, 40 AD3d1368, 1374-1375 [2007], lv denied 9 NY3d 923 [2007]).
Counsel provided defendant effective assistance. Several of defendant's arguments constituteattacks on counsel's strategies, which we will not second-guess. While we have determined thatCounty Court should have provided limiting instructions regarding the gang testimony andcounsel did not request such instructions, the failure to make that request could have been astrategic decision to avoid highlighting that testimony. Considering the context of the entireprosecution, including the suppression of defendant's oral and written statements to police,defendant received meaningful representation (see People v Van Ness, 43 AD3d 553, 555-556 [2007]; People v Timberlake, 42 AD3d761, 762 [2007]).
County Court erred in imposing consecutive sentences for each of the 10 counts charged.Although never pointed out to the trial court, several of the charges should have been dismissedas lesser included offenses (see CPL 300.40 [3] [b]; People v Horton, 46 AD3d1225 [2007] [decided herewith]). In the March incident, burglary in the second degree (count2) was a lesser included offense of burglary in the first degree (count 1) (see People v Morales, 36 AD3d957, 958 [2007], lv denied 8 NY3d 988 [2007]; People v Beverly, 35 AD3d 754, 754 [2006], lv denied 8NY3d 981 [2007]). In the August incident, the two counts of murder in the second degree (counts8 and 9) were lesser included offenses of two counts of murder in the first degree (counts 5 and6) (see People v Miller, 6 NY3d295, 303 [2006]; People v Horton, supra; People v Jackson, 41 AD3d 1268, 1270 [2007]). Other countsrequired concurrent sentences because a single act constituted one offense and a material elementof another offense (see Penal Law § 70.25 [2]). Two of the murder in the firstdegree counts (counts 5 and 6) were based upon the murder occurring in the course of anattempted robbery (count 10), making the latter crime an element of those murder counts subjectto concurrent sentencing (see People vFaulkner, 36 AD3d 951, 953 [2007], lv denied 8 NY3d 922 [2007]). Similarly,concurrent sentences are required for the count of murder in the first degree based upon themurder occurring during the commission of another murder (count 7) and the other counts ofmurder in the first degree (counts 5 and 6) (see People v Rosas, 8 NY3d 493, 498 [2007]; People vJackson, 41 AD3d at 1270).[*4]
Cardona, P.J., Peters, Spain and Rose, JJ., concur.Ordered that the judgment is modified, on the law, by reversing defendant's convictions oncounts 2, 8 and 9 of the indictment; dismiss said counts, vacate the sentences imposed thereonand direct that defendant's sentences on counts 7 and 10 of the indictment shall run concurrentwith the sentences on counts 5 and 6 of the indictment; and, as so modified, affirmed.