| People v Cromwell |
| 2010 NY Slip Op 01696 [71 AD3d 414] |
| March 2, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JarvisCromwell, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Sheryl Feldman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered March 3, 2008,convicting defendant, after a jury trial, of attempted murder in the second degree and criminalpossession of a weapon in the second degree, and sentencing him to consecutive terms of 25years and 10 years, unanimously modified, on the law, to the extent of directing that thesentences run concurrently, and otherwise affirmed.
The verdict was not against the weight of the evidence (People v Danielson, 9 NY3d 342, 349 [2007]). There is no basisfor disturbing the jury's determinations concerning credibility. The evidence established thatdefendant and the codefendant joined in a premeditated act of revenge. It would have beenunreasonable for the jury to conclude that the codefendant acted alone, firing both of the pistolsproved to have been used, while bringing defendant along on this planned mission as a mereobserver.
Since the evidence against defendant was both direct and circumstantial (see People vBarnes, 50 NY2d 375, 380 [1980]), the court did not err in denying defendant's request for acircumstantial evidence charge. In any event, any error in refusing to give such an instructionwas harmless.
Defendant did not preserve his claim that the court improperly admitted evidence ofuncharged crimes and his related claim that the court did not provide an adequate limitinginstruction, and we decline to review them in the interest of justice. As an alternative holding, wealso reject them on the merits. After forensic evidence established that two pistols recoveredfrom an apartment shared by defendant and the codefendant were used in the crime, the courtproperly permitted a witness to testify that he recognized the recovered pistols as similar to twoweapons he saw in the possession of defendant and the codefendant several times in the weeksleading up to the incident. This testimony was plainly admissible, because rather than simplydemonstrating criminal propensity, it specifically linked defendant and the codefendant to thecharged crime (see e.g. People v Del Vermo, 192 NY 470, 478-482 [1908]; People v Brooks, 62 AD3d 511,512 [2009], lv denied 12 NY3d 923 [2009]; People v Mitchell, 24 AD3d 103, 104 [2005], lv denied 6NY3d 778 [2006]). Furthermore, its probative value exceeded any [*2]prejudicial effect. Accordingly, we reject defendant's ineffectiveassistance of counsel claims relating to this evidence (see Strickland v Washington, 466US 668 [1984]; People v Caban, 5NY3d 143, 155-156 [2005]).
The court properly permitted a witness to testify that immediately before the crime, indefendant's presence, the codefendant's nontestifying girlfriend made a statement that could beviewed as urging the codefendant to abandon his plan of revenge. This was not hearsay, as it wasnot admitted for its truth (see People v Reynoso, 73 NY2d 816, 819 [1988]). "The mereutterance of a statement, without regard to its truth, may indicate circumstantially the state ofmind of the hearer or of the declarant" (Prince, Richardson on Evidence § 8-106, at 502[Farrell 11th ed]). Defendant's Confrontation Clause claim is meritless.
The court improperly imposed consecutive sentences (see Penal Law § 70.25[2]). The weapon possession charge related to the same event as the attempted murder, and theevidence did not establish that defendant possessed the pistol with a separate purpose from hisintent to shoot the victim (see People vHamilton, 4 NY3d 654 [2005]; People v Rosario, 26 AD3d 271 [2006], lv denied 6 NY3d897 [2006]). We note that at sentencing the People did not ask for consecutive sentences.
We perceive no basis for otherwise reducing the sentence. Concur—Friedman, J.P.,Moskowitz, Renwick, Freedman and RomÁn, JJ.