| People v Portee |
| 2008 NY Slip Op 09114 [56 AD3d 947] |
| November 20, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v KennethPortee, Also Known as Rah, Also Known as Rahjaleek, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Philip W. Mueller of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered December 11, 2006, upon a verdict convicting defendant of the crimes ofmanslaughter in the second degree, attempted assault in the first degree, reckless endangermentin the first degree, criminal possession of a weapon in the second degree, criminal possession ofa weapon in the third degree (two counts) and assault in the second degree.
The crimes for which defendant stands convicted stem from four separate incidents occurringin 2003, while defendant was allegedly engaged in a drug-dealing enterprise that he ran out of ahouse on Stanley Street in the City of Schenectady, Schenectady County. The first set of chargesstemmed from an incident in June 2003 in which defendant allegedly was standing on the porchof the house and exchanged gun fire with an individual in a passing vehicle. The second set ofcharges stemmed from an incident in September 2003 in which defendant allegedly shot IsaacHolmes in the buttocks because he believed that Holmes was attempting to rob him. Thefollowing day, defendant allegedly again fired shots at Holmes, prompting the third set ofcharges. Finally, the fourth set of charges arose out of an incident that occurred on or aboutSeptember 30, 2003. On that day, defendant was standing on the porch of the Stanley Street[*2]house when Craig Williams and William Farrow parked theirvehicles near the house and, upon emerging, began a conversation. Defendant allegedly thendescended from the porch and began firing a gun in Williams's direction. As Williams andFarrow fled, the driver of Williams's vehicle backed it toward defendant, prompting him to fire inthat direction. The bullets hit and fatally wounded Unishun Mollette, a female passenger in thevehicle.
At the close of evidence at the ensuing jury trial, County Court, among other things,dismissed 10 counts from the original indictment, including all those associated with the allegedshooting at the passing vehicle in June 2003. However, the jury ultimately convicted defendant offive counts related to the Mollette shooting, including manslaughter in the second degree,attempted assault in the first degree, reckless endangerment in the first degree, criminalpossession of a weapon in the second degree and criminal possession of a weapon in the thirddegree. The jury also found defendant guilty of assault in the second degree and criminalpossession of a weapon in the third degree based on his shooting of Holmes. Thereafter, CountyCourt sentenced defendant as a persistent felony offender to an aggregate prison term of 50 yearsto life. Defendant now appeals.
Initially, defendant contends that his convictions of manslaughter in the second degree andattempted assault in the first degree are not supported by legally sufficient evidence and that allof the convictions are against the weight of the evidence. Given that defendant failed to preservehis challenge to the sufficiency of the evidence by making a particularized motion to dismiss attrial identifying the alleged deficiencies in the evidence (see People v Balram, 47 AD3d 1014, 1015 [2008], lvdenied 10 NY3d 859 [2008]), we need address only his contention that the convictions areagainst the weight of the evidence. In that regard, considering that a different verdict wouldarguably not have been unreasonable, this Court must "weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony" (People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marksand citations omitted]) and determine "whether the jury was justified in finding the defendantguilty beyond a reasonable doubt" (People v Gayle, 53 AD3d 857, 858 [2008] [internal quotationmarks and citations omitted]). However, it is the factfinder's function to evaluate the credibilityof witnesses and, upon appellate review, such determinations should be accorded great deference(see People v Bleakley, 69 NY2d at 495; People v Holland, 279 AD2d 645, 646[2001], lv denied 96 NY2d 801 [2001]).
Here, defendant essentially contends that the jury improperly credited the testimony againsthim inasmuch as he claims that many of the witnesses were incredible and had ample motive tolie due to their extensive criminal histories, and because much of the testimony was inconsistentwith the physical evidence. However, with respect to the Holmes shooting, Holmes himselfidentified defendant as the shooter, as did Holmes's companion at the time of the shooting, andtwo other individuals testified that defendant admitted to them that he shot Holmes. With respectto the Mollette shooting, at least four eyewitnesses testified consistently that they saw defendantshooting at Williams and his vehicle. The physical evidence also implicated defendant in that 9millimeter shell casings were found at the crime scenes and three witnesses testified thatdefendant routinely carried a weapon of that caliber. Contrary to defendant's suggestion, the factthat certain of these witnesses had criminal histories, were incarcerated or seeking leniency doesnot render their testimony incredible as a matter of law but, rather, raises an issue of credibilityfor the factfinder to resolve (see Peoplev Brown, 46 AD3d 949, 951 [2007], lv denied 10 NY3d 808 [2008]; People v Doherty, 37 AD3d 859,860 [2007], lv denied 9 NY3d 843 [2007]). Moreover, the only evidence in defendant'sfavor was his own testimony that he was innocent, his claim that another individual shot atWilliams during the [*3]incident in which Mollette was killed,and the testimony of one witness who provided a physical description of the shooter in theMollette incident that did not match defendant. Thus, viewing the evidence in a neutral light andaccording the appropriate deference to the jury's credibility determinations (see People v Barringer, 54 AD3d442, 443 [2008]), it cannot be said that the verdict was against the weight of the evidence.
Next, defendant's challenge to County Court's Molineux ruling is unavailing. Theevidence of defendant's multiple drug sales was properly admitted to demonstrate defendant'smotive for the shootings (see People vAbdullah, 28 AD3d 940, 942 [2006], lvs denied 7 NY3d 784 [2006]; see also People v Patten, 43 AD3d964, 964-965 [2007], lv denied 9 NY3d 1008 [2007]). Evidence that he possessed ahandgun similar to the one allegedly used in the charged crimes was likewise admissible toestablish defendant's identity (see People v Rivera, 281 AD2d 702, 703 [2001], lvdenied 96 NY2d 805 [2001]; see also People v Brown, 266 AD2d 863, 863 [1999],lv denied 94 NY2d 860 [1999]).
Inasmuch as defendant's pro se contention that his pretrial counsel was ineffective raisesissues that are outside the record, such claims are more properly the subject of a CPL article 440motion (see People v Feliz, 51AD3d 1278, 1279 [2008]). Although he further contends that his trial counsel was alsoineffective, the record demonstrates that, among other things, counsel made the appropriatemotions, effectively cross-examined witnesses, made appropriate objections and obtained adismissal of many of the charges against defendant (see People v Ramos, 48 AD3d 984, 987 [2008], lv denied10 NY3d 938 [2008]).
We do not find that the sentence imposed was harsh and excessive. Considering defendant'slengthy criminal history and the seriousness of the crimes for which he was convicted (see People v Booker, 53 AD3d697, 704 [2008]), we find neither an abuse of discretion nor extraordinary circumstanceswarranting a modification of the sentence in the interest of justice (see People v Barringer, 54 AD3d442, 444 [2008]; People v Booker, 53 AD3d at 704 [2008]). Defendant's challengeto the persistent felony offender statute is unavailing inasmuch as the Court of Appeals hasdefinitively upheld the constitutionality of that statute (see People v Rivera, 5 NY3d 61, 63 [2005], cert denied 546US 984 [2005]; see also Penal Law § 70.10; CPL 400.20).
Finally, defendant's contention that County Court erred in giving an interested witnessinstruction to the jury with respect to his testimony is unpreserved for this Court's review (see People v Jean-Baptiste, 37 AD3d852, 853 [2007], lv denied 9 NY3d 845 [2007]). We have reviewed his pro se claimthat the People improperly presented witness testimony that it knew to be false (see Thomas vKuhlman, 255 F Supp 2d 99 [ED NY 2003]) and find it to be without merit.
Cardona, P.J., Spain, Carpinello and Stein, JJ., concur. Ordered that the judgment isaffirmed.