| People v Morrison |
| 2010 NY Slip Op 01850 [71 AD3d 1228] |
| March 11, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Duane Morrison, Also Known as Big Homie,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered April11, 2008 in Albany County, upon a verdict convicting defendant of the crimes of attemptedmurder in the second degree and escape in the second degree.
In June 2007, defendant and DeShaun McWilliams entered a convenience store located inthe City of Albany, wherein McWilliams physically assaulted two female teenagers. JerryCooley and Deontint Davis then arrived on the scene and Cooley and McWilliams engaged in analtercation. The following day, defendant told Tavarus Blackwell and Siheen Drayton that heintended to retaliate for McWilliams's injuries. Defendant then obtained a .22 caliber rifle fromDrayton and proceeded with Drayton and Blackwell to a house at which Davis and Cooley hadbeen located. They observed Cooley and Davis sitting on the porch and, from a hiding spot in abuilding next door, defendant fired the rifle several times, hitting Cooley in the leg and Davis inthe head.
Defendant was arrested the next day and, after escaping police custody and being recaptured,he was charged with attempted murder in the second degree, assault in the first degree, assault inthe second degree and escape in the second degree. Following a jury trial, [*2]defendant was convicted of attempted murder in the second degreeand escape in the second degree. Defendant was thereafter sentenced to an aggregate prison termof 26
Initially, defendant's general motions to dismiss at trial were insufficient to preserve forreview his contention that the verdict convicting him of attempted murder in the second degree isnot supported by legally sufficient evidence (see People v Finger, 95 NY2d 894, 895[2000]; People v Mann, 63 AD3d1372, 1373 [2009], lv denied 13 NY3d 861 [2009]). Nevertheless, we must considerthe sufficiency of evidence as to each element of that crime as part of our weight of the evidencereview (see People v Danielson, 9NY3d 342, 349 [2007]; People v Mann, 63 AD3d at 1373). In that regard, bothBlackwell and Drayton testified at trial that, prior to the incident in question, defendantunequivocally expressed his intention to kill the victims, and Drayton testified that he gave therifle to defendant. Drayton testified that defendant was wearing a brown hooded sweatshirt onthe day of the shooting, a witness who heard the rifle shots observed two individuals—onewearing a brown or maroon hooded sweatshirt and carrying a rifle—flee the area, anddefendant's half sister testified that defendant appeared later that day at her mother's apartmentwearing a brown hooded sweatshirt. According to Blackwell, after the shooting, defendant statedthat he had "put that work in," which, according to Blackwell and Drayton, was slang for killingsomeone. The only evidence that defendant offered in his defense was the uncorroboratedtestimony of a former girlfriend, who said that defendant was with her later that night, after theshooting. Although defendant claims that the verdict acquitting him of the assault chargesindicates that the jury rejected Drayton's testimony that defendant was the shooter, we note thatthe jury did not have to accept all of Drayton's testimony and was free to reject portions of it orto give it little weight. However, given that a different verdict would not have beenunreasonable, viewing the evidence in a neutral light, and having weighed the conflictingtestimony and inferences to be drawn therefrom (see People v Danielson, 9 NY3d at 348;People v O'Neil, 66 AD3d1131, 1132 [2009]), we find that the jury was justified in finding that defendant intended tocommit the crime of murder and engaged in conduct which tended to effect the commission ofthat crime (see Penal Law §§ 110.00, 125.25 [1]).
Next, the verdict convicting defendant of attempted murder in the second degree is notrepugnant to the verdict acquitting him of assault in the first degree. Although the verdicts mayseem "illogical when viewed in light of the proof adduced" (People v Tucker, 55 NY2d1, 6 [1981]), because the elements of each crime as charged to the jury were not identical, "thefact that the jury acquitted on the assault charge but convicted on the attempted murder chargedoes not render the verdict repugnant" (People v Dominique, 36 AD3d 624, 625 [2007]; see People v Carter, 60 AD3d1103, 1105-1106 [2009], lv denied 12 NY3d 924 [2009]).
Finally, we do not find the aggregate sentence imposed to be harsh and excessive. Nor do wediscern an abuse of discretion or the existence of extraordinary circumstances warranting areduction of the sentence in the interest of justice. Contrary to defendant's contention, the factthat a codefendant received a lesser sentence as a result of a plea agreement and in exchange forhis cooperation in testifying against defendant is of no moment (see People v Manley, 70 AD3d1125, 1125 [2010]). Defendant's remaining claim regarding CPL 200.60 has beenconsidered and, under the facts of this case, found to be unpersuasive.
Cardona, P.J., Mercure, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.