| People v Mann |
| 2009 NY Slip Op 05030 [63 AD3d 1372] |
| June 18, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v HertfordMann, Appellant. |
—[*1] Richard J. McNally, Jr., District Attorney, Troy (Robert D. Seymour of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Rensselaer County (McGrath,J.), rendered January 26, 2007, upon a verdict convicting defendant of the crimes of criminalpossession of a weapon in the second degree, reckless endangerment in the first degree andassault in the third degree.
During an afternoon in April 2006, defendant and Shanta Byas had a heated disagreementthat rapidly escalated from a verbal exchange, to spitting at each other, to a physical altercationduring which defendant struck Byas in the face with his fist. Shortly thereafter, Byas,accompanied by several of her friends, sought out defendant at an apartment complex wheredefendant's friend, Lolita Pryor, resided. After Pryor told the group that defendant was not there,the group began to vandalize Pryor's automobile. Defendant then emerged from Pryor'sapartment with a gun and, according to several witnesses, fired multiple shots at the group. Hewas indicted for reckless endangerment in the first degree and criminal possession of a weaponin the second degree for the alleged shooting incident, as well as assault in the third degree forthe earlier altercation with Byas. He was found guilty by a jury of all three counts. County Courtsentenced him, as a second felony offender, to concurrent prison terms of 3½ to 7 years forreckless endangerment, 15 years (plus postrelease supervision) for criminal possession of aweapon, and one year for assault. Defendant appeals.[*2]
Defendant argues that the two counts arising from thealleged possession and firing of the gun were not supported by legally sufficient evidence andalso that the jury's verdict on those two counts was against the weight of the evidence.Defendant's general motion to dismiss at trial failed to properly preserve for appellate review theissue regarding legal sufficiency of the evidence (see People v Finger, 95 NY2d 894, 895[2000]; People v Gray, 86 NY2d 10, 20 [1995]). The record reveals no reason to exerciseour interest of justice jurisdiction to reverse on this issue (see People v Thomas, 21 AD3d 643, 644-645 [2005], lvdenied 6 NY3d 759 [2005]). "However, we necessarily review the evidence adduced as toeach of the elements of the crimes in the context of our review of defendant's challengeregarding the weight of the evidence" (People v Caston, 60 AD3d 1147, 1148-1149 [2009] [citationsomitted]), and there is no preservation requirement for weight of the evidence review (see People v Danielson, 9 NY3d342, 348 [2007]; People vLoomis, 56 AD3d 1046, 1046 [2008]).
In weight of the evidence review, "[i]f it would have been reasonable for the factfinder toreach a different conclusion, then [we] must, like the trier of fact below, weigh the relativeprobative force of conflicting testimony and the relative strength of conflicting inferences thatmay be drawn from the testimony" (People v Romero, 7 NY3d 633, 643 [2006] [internal quotationmarks and citations omitted]; see People v Bleakley, 69 NY2d 490, 495 [1987]). Here, adifferent verdict would not have been unreasonable since, among other evidence, defendanttestified and denied shooting or possessing a gun. We thus will weigh and consider the evidenceto determine whether "the jury was justified in finding the defendant guilty beyond a reasonabledoubt" (People v Danielson, 9 NY3d at 348).
Numerous witnesses testified at trial, some from Byas's group, but many merely bystandersfrom the neighborhood. The testimony of these witnesses included accounts of hearing severalgunshots, seeing defendant with a handgun, noticing smoke from the gun as defendant fired it,and observing the gun being fired by defendant in the direction of Byas and her group. Whilethere were some inconsistencies in the various witnesses' recollection of events, theseinconsistencies were not so significant as to cause us to conclude that the verdict was against theweight of the evidence (see People v Dallas, 58 AD3d 1019, 1020 [2009]). Evidence attrial also included the fact that police, although never able to find the gun allegedly used bydefendant, nevertheless recovered a live round of ammunition outside of Pryor's apartment. Theyfound ammunition inside her apartment that matched the caliber of the bullet recovered outside,the bullet from outside had a mark of the type found on cartridges which had been in a revolverand ejected, and that bullet fired when tested. This evidence, together with the description ofevents by eyewitnesses and other evidence at trial, provided proof of each of the elements of thegermane crimes, including that defendant possessed an operable gun which he fired at a group ofindividuals (see Penal Law §§ 120.25, 265.03 [1] [b]). While there wassome conflicting evidence and credibility issues, we find the jury's resolution of those issues, aswell as its verdict, to be amply supported by the weight of the evidence (see People vBleakley, 69 NY2d at 495; Peoplev Golden, 37 AD3d 972, 974 [2007], lv denied 9 NY3d 844 [2007]).
Defendant contends that the sentence was harsh and excessive. Defendant was not a strangerto the criminal justice system and, in fact, he was on probation at the time of the current crimes.County Court noted that the shots were fired across an open field where other residents,including children, were often present. We are unpersuaded that the sentence was an abuse ofdiscretion or that extraordinary circumstances exist that would merit reducing the sentence (see People v Rollins, 51 AD3d1279, 1282-1283 [2008], lv denied 11 NY3d 922, 930 [2009]; People v Lozada, 35 AD3d 969,971 [2006], lv denied 8 NY3d 947 [2007]).[*3]
Cardona, P.J., Peters, Kane and Garry, JJ., concur.Ordered that the judgment is affirmed.