| People v Young |
| 2008 NY Slip Op 04001 [51 AD3d 1055] |
| May 1, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Shamel T.Young, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Carpinello, J. Appeal from a judgment of the County Court of Broome County (Mathews, J.),rendered January 2, 2007, among other things, upon a verdict convicting defendant of the crimeof attempted assault in the first degree (two counts) and criminal possession of a weapon in thesecond degree.
A jury found defendant guilty of two counts of attempted assault in the first degree andcriminal possession of a weapon in the second degree stemming from evidence that he fired shotsinto a vehicle occupied by Edwin Lambert and Daniel Barker on the night of July 18, 2005.Finding no merit to any of the contentions raised on appeal, we now affirm.
As conceded by defendant, his challenge to the legal sufficiency of the evidence against himhas not been properly preserved for review by a specific motion to dismiss at the close of thePeople's proof (see e.g. People vDoyle, 48 AD3d 961, 962 [2008]). Contrary to defendant's contention, reversal in theinterest of justice is not warranted. In addition, upon the exercise of our factual review power (see People v Romero, 7 NY3d633, 643-644 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]), we areunpersuaded that the verdict was against the weight of the evidence for the following reasons.[*2]
Trial testimony established that on the evening of theshooting, defendant and Lambert got into a verbal argument at a local park which turned into aphysical altercation a few minutes later outside a nearby fast food restaurant. Barker, who wasfriends with Lambert, witnessed both incidents. According to Barker, upon breaking up thescuffle in the restaurant parking lot, the man with whom Lambert was fighting warned Lambert afew times that he had "something for [him]." This man then took off in his vehicle. Less than onehour later, as Lambert and Barker were driving through defendant's neighborhood, three shotswere fired at their vehicle. According to Barker, he immediately looked over his shoulder in thedirection of the fired shots and recognized the shooter as being the same man with whomLambert had been fighting less than one hour earlier.
In challenging the weight of the evidence against him, defendant argues that there wasinsufficient proof establishing him as the shooter because Barker's testimony was implausible,inconsistent and unreliable. In particular, defendant argues that it was impossible for Barker toidentify the shooter with such a brief glance over his shoulder in the dark. While a contraryverdict would not have been unreasonable had the jury rejected Barker's testimony, it was thejury's province to resolve all credibility issues and this Court accords due deference to suchdeterminations (see e.g. People v Doyle, 48 AD3d at 963; People v Gathers, 47 AD3d 959[2008]). Weighing the evidence in a neutral light (see e.g. id.), we conclude that theverdict finding defendant responsible for the shooting was not against the weight of the evidence(see People v Clemmons, 46 AD3d1117 [2007], lv denied 10 NY3d 763 [2008]; People v Johnson, 38 AD3d 1012 [2007]; People v Hutcherson, 25 AD3d912 [2006], lv denied 6 NY3d 849 [2006]).
Finally, there was a sufficient factual predicate to support a jury instruction on consciousnessof guilt. Trial testimony established that, within two days of the shooting, a police detectiveassigned to the case identified defendant as the suspect and thereafter attempted without successto locate him. According to this detective, he conducted an extensive check of known locationsfor defendant and also left word with his girlfriend and family members that he was looking fordefendant and needed to speak with him, to no avail. Defendant was finally arrested on February26, 2006. This evidence provided sufficient grounds for the charge (see People vHolland, 174 AD2d 508, 509-510 [1991], lv denied 78 NY2d 1011 [1991]).
Peters, J.P., Kane, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed.