| People v Kindred |
| 2009 NY Slip Op 02268 [60 AD3d 1240] |
| March 26, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Michael L.Kindred, 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 July 26, 2007, upon a verdict convicting defendant of the crimes of attempted murder inthe second degree, assault in the second degree, reckless endangerment in the first degree andcriminal possession of a weapon in the second degree.
When responding to a report which turned out to be unfounded, police encountereddefendant, talked with him and learned that he was on parole. Shortly thereafter, and only a shortdistance away, defendant pulled out a gun and fired four or five shots at two men walking downthe street, striking one of them in the leg. The police recognized one victim's description of theshooter as similar to defendant. After locating defendant, they arrested him for parole violations,took him to the police station for questioning, then arrested him in connection with the shooting.Following trial, a jury convicted him of attempted murder in the second degree, assault in thesecond degree, reckless endangerment in the first degree and criminal possession of a weapon inthe second degree. County Court sentenced defendant to an aggregate prison term of 25 yearswith five years of postrelease supervision. Defendant appeals.
County Court properly denied defendant's motion to suppress his clothing that was seizedafter he was arrested. Although defendant contends that the arrest for parole violations was aruse, a senior parole officer authorized the issuance of a parole detainer based upon [*2]defendant's violations of several conditions of parole. He was takeninto custody on that basis. After the police conducted further investigation into the shootingincident, they arrested defendant for crimes related to that as well. Only after he was twicearrested and booked on those charges did the police remove defendant's shirts and secure them asevidence. As this evidence was gathered incident to lawful arrests, the court appropriately deniedsuppression (see People vWhitehead, 23 AD3d 695, 696 [2005], lv denied 6 NY3d 840 [2006];People v Ebron, 275 AD2d 490, 491 [2000], lv denied 95 NY2d 934 [2000];People v White, 138 AD2d 863, 865-866 [1988], lv denied 72 NY2d 914[1988]).
Defendant's convictions were based upon legally sufficient evidence and not against theweight of the evidence. The two victims identified defendant as the individual who pulled out agun and shot at them as they ran away, with a bullet tearing through the leg of one victim. Theidentification testimony by two eyewitnesses, who saw the shooter from approximately six feetaway, was sufficient to support the charges (see People v Bleakley, 69 NY2d 490, 495[1987]). In contrast, the defense pointed out inconsistencies in the witnesses' testimony and thelack of forensic testing on defendant or the alleged weapon, and defendant testified that he wasnot involved in the incident. Giving deference to the jury's credibility determinations, however,we find that the jury's verdict was not against the weight of the evidence (see People v Romero, 7 NY3d633, 643-644 [2006]; People vYoung, 51 AD3d 1055, 1056 [2008], lv denied 11 NY3d 796 [2008]; People v Zindle, 48 AD3d 971,973 [2008], lv denied 10 NY3d 846 [2008]; People v Lind, 20 AD3d 765, 767 [2005], lv denied 5NY3d 830 [2005]).
County Court did not err in admitting evidence of uncharged crimes. Evidence concerningprior uncharged crimes may not be admitted to show a defendant's criminal propensity, but maybe admissible to prove an aspect of the crime, such as the identity of the perpetrator, if theprobative value of the evidence outweighs its potential prejudice (see People v Blair, 90NY2d 1003, 1004-1005 [1997]; People v Alvino, 71 NY2d 233, 241-242 [1987]). Toadmit evidence of an uncharged crime on the issue of identity, however, clear and convincingevidence must establish that the defendant was the perpetrator of the other crime (see Peoplev Robinson, 68 NY2d 541, 544-545 [1986]). Similarly, evidence of an uncharged crime isunnecessary and inadmissible on the issue of identity if the defendant's identity in the case ontrial is conclusively established (see People v Robinson, 68 NY2d at 547-548).Uncharged crime evidence related to identity should be admitted only where the perpetrator'sidentity is truly in controversy (see People v Robinson, 68 NY2d at 548; People vCondon, 26 NY2d 139, 142 [1970]).
Here, the People introduced evidence of phone calls made from the jail where defendant washoused to the home of one of the victims. The caller identified himself with defendant's firstname and threatened the victim's family if the victim testified. Jail records showed that numerousphone calls were made to the victim's residence from the tier where defendant was housed, thatthe calls changed to a different tier when defendant moved to that tier, and the dates of the callscoincided with events in this criminal case. The woman who answered the one completed calltestified about the threats and that she did not know any other inmate on the tier. This evidenceclearly and convincingly established that defendant made the threatening calls or that they weremade at his behest. Although two eyewitnesses testified that defendant was the shooter,misidentification was the main defense. Thus, as identity was hotly contested, evidence thatdefendant attempted to intimidate or threaten a witness was admissible to establish theperpetrator's identity (see People v Robinson, 68 NY2d at 547-548; People vCondon, 26 NY2d at 142; see alsoPeople v Arafet, 54 AD3d 517, 520 [2008], lv granted 11 NY3d 859 [2008]).[*3]
We decline to consider defendant's arguments concerningthe prosecutor's summation, as they were not preserved by objection at trial (see People v Blair, 32 AD3d 613,614 [2006]; People v Ruiz, 8 AD3d831, 832 [2004], lv denied 3 NY3d 711 [2004]). Based upon defendant's criminalhistory, including two prior felony convictions, and the random and violent nature of thisoffense, County Court's sentence was not harsh or excessive (see People v Levy, 52 AD3d 1025, 1028-1029 [2008]).Defendant's remaining arguments have been reviewed and found unpersuasive.
Cardona, P.J., Rose and Stein, JJ., concur. Ordered that the judgment is affirmed.