| People v Smith |
| 2009 NY Slip Op 04773 [63 AD3d 1301] |
| June 11, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Andre Smith,Also Known as Seven, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Matthew J. Sypniewski of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of Schenectady County (Eidens, J.),rendered August 11, 2004, upon a verdict convicting defendant of the crimes of murder in thesecond degree, criminal sale of a controlled substance in the third degree, criminal possession ofa controlled substance in the third degree, criminal possession of a weapon in the second degree,reckless endangerment in the first degree, criminal possession of a weapon in the third degree(four counts), tampering with physical evidence, reckless endangerment in the second degree,petit larceny, criminal possession of stolen property in the fifth degree and menacing in thesecond degree.
Following the shooting death of a man who owed defendant money from drug deals, a grandjury handed up a 21-count indictment against defendant. A trial jury found him guilty of 14counts. Defendant appeals.
The convictions were supported by legally sufficient evidence and not against the weight ofthe evidence. As for sufficiency, defendant only made a particularized motion to dismiss thecounts charging criminal sale of a controlled substance in the third degree and criminalpossession of a controlled substance in the third degree, thus failing to preserve his argument asto any other counts (see People vPortee, 56 AD3d 947, 948-949 [2008]; People v [*2]Balram, 47 AD3d1014, 1015-1016 [2008], lv denied 10 NY3d 859 [2008]). Several witnessestestified regarding defendant's possession of crack cocaine and his exchange of crack cocaine forthe use of a car, constituting legally sufficient evidence of his possession and sale of a controlledsubstance. As to weight of the evidence, defendant challenges only his conviction of murder inthe second degree. On that count, four eyewitnesses who were in the vehicle with defendanttestified that he shot the victim. Even if all of the occupants of the car were accomplices, thusrequiring their testimony to be corroborated (see CPL 60.22 [1]), an independent witnesswho was on the street testified that the shooter was the front-seat passenger, a black male withlong dreadlocks. Defendant and other witnesses testified that he was the front-seat passenger andwas the only person in the car with long dreadlocks. According to his own testimony and that ofthe other occupants of the car, defendant was arguing with the victim immediately prior to theshooting. While defendant testified that a specific passenger in the back seat was the shooter, theother passengers and the independent witness all testified that defendant pulled out a sawed-offshotgun and shot the victim. Viewing the evidence in a neutral light and according deference tothe jury's credibility determinations, the verdict was not against the weight of the evidence(see People v Portee, 56 AD3d at 949-950).
County Court's Molineux ruling was proper. The evidence of uncharged crimes andbad acts was admitted not to show defendant's propensity to commit the charged crimes, but toprove his identity, motive and intent and provide necessary background information (see People v Giles, 11 NY3d 495,499 [2008]; People v Jeanty, 268 AD2d 675, 679 [2000], lv denied 94 NY2d 949[2000]). Proof of defendant's involvement with the drug trade was integral to show hisrelationship to the victim, namely as someone he supplied with drugs to sell on consignment.The victim's failure to repay his debt for those drugs related to defendant's motive to kill thevictim. Proof of this motive also made it more likely that it was defendant who killed the victim,rather than the person who defendant testified was the shooter. While murder was the mostserious count, defendant was also charged with possessing and selling crack cocaine andpossessing weapons, making his position in the drug trade highly relevant. Considering thedefense position that defendant was not the shooter and that the debt owed by the victim was tooinsubstantial to create a motive for defendant to kill him, the Molineux evidence fellwithin recognized exceptions and its probative value to the People's case outweighed itsprejudice to defendant (see People vWesterling, 48 AD3d 965, 966 [2008]; People v Williams, 28 AD3d 1005, 1007-1008 [2006], lvdenied 7 NY3d 819 [2006]).
County Court did not abuse its discretion in reaching a Sandoval compromise. Thecourt only permitted the People to inquire of defendant regarding approximately half of the itemsincluded in their Sandoval proffer. Crimes involving theft and dishonesty exhibitdefendant's willingness to place his own self-interest above the interests of society, renderingthem particularly useful in evaluating credibility (see People v Walker, 83 NY2d 455,461 [1994]; see also People v Hayes, 97 NY2d 203, 207 [2002]). Violations of prisondisciplinary rules evince a similar refusal to abide by the rules of society, which the court mayweigh in determining whether the People may inquire of defendant concerning those violations(see People v Watkins, 49 AD3d908, 909 [2008], lv denied 10 NY3d 965 [2008]; People v Adams, 39 AD3d 1081, 1082 [2007], lv denied 9NY3d 872 [2007]). The similarity of prior convictions to the charged crimes and the remotenessof those convictions do not necessarily require their exclusion (see People v Ward, 27 AD3d 776,777 [2006], lv denied 7 NY3d 764 [2006]; People v Rockwell, 18 AD3d 969, 970 [2005], lv denied 5NY3d 768 [2005]). Here, the court weighed the proffered convictions, rule violations andstatements to parole authorities. We cannot say that the court abused its discretion in the balanceit struck (see People v Brown, 52AD3d 943, 947 [2008], lv [*3]denied 11 NY3d 735[2008]; People v Boodrow, 42AD3d 582, 584-585 [2007]), and the court provided limiting instructions regarding theproper purpose of that testimony when those topics were addressed on cross-examination(see People v Watkins, 49 AD3d at 909).
Defendant received effective assistance from his counsel. Several of the alleged deficienciesinvolve matters outside the record, making them unreviewable on appeal and more properly thesubject of a CPL article 440 motion (seePeople v Sterling, 57 AD3d 1110, 1113 [2008]; People v Cruz, 53 AD3d 986, 986 [2008]). As the state of the lawregarding intentional and depraved indifference murder was in flux at the time of defendant'strial and not settled until at least several months later (see People v Payne, 3 NY3d 266, 269-272 [2004]), counsel wasnot ineffective for permitting County Court to charge those counts in the alternative. In anyevent, defendant was convicted of the intentional murder count so the jury never reached thealternative count. Counsel demanded and participated in several pretrial hearings, vigorouslycross-examined the People's witnesses, engaged in a thorough direct examination of defendantand made numerous objections and legal arguments. Under the circumstances, includingdefendant's acquittal of seven charges and conviction of a lesser included crime on one othercount, counsel provided him with meaningful representation (see People v Madison, 31 AD3d 974, 975 [2006], lvdenied 7 NY3d 868 [2006]).
While it was proper for the jury to convict defendant of two counts of criminal possession ofa weapon in the third degree (counts six and seven) and one count of criminal possession of aweapon in the second degree (count five) related to the day of the shooting, as those counts werebased upon alternative theories and subdivisions, County Court should have imposed concurrentsentences for those counts (cf. Matter of Johnson v Morgenthau, 69 NY2d 148, 152[1987]). Given defendant's criminal history and total lack of remorse, the sentence imposed byCounty Court is not harsh or excessive. Defendant's remaining arguments, including hischallenge to the denial of his suppression motion, are without merit.
Peters, J.P., Spain, Rose and McCarthy, JJ., concur. Ordered that the judgment is modified,on the law, by directing that defendant's sentences for one count of criminal possession of aweapon in the second degree and two counts of criminal possession of a weapon in the thirddegree under counts five, six and seven of the indictment shall run concurrently with each other,and, as so modified, affirmed.