| People v Almonte |
| 2010 NY Slip Op 04109 [73 AD3d 531] |
| May 13, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Dennis Almonte, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered October 9,2007, convicting defendant, after a jury trial, of murder in the second degree, robbery in the firstand second degrees, and criminal possession of a weapon in the second and third degrees, andsentencing him to an aggregate term of 17½ years to life, unanimously affirmed.
The admission of 9 millimeter ammunition recovered from a room used by defendantimmediately after the shooting does not warrant reversal. A .380 caliber casing was recoveredfrom the crime scene, and an accomplice witness testified that defendant used a .380 caliberpistol. However, the People offered the 9 millimeter cartridges under an alternative theory thatthe weapon might actually have been a 9 millimeter, loaded with .380 caliber ammunition, sothat the cartridges recovered tended to establish that defendant had access to a pistol capable offiring the fatal shot (see People v Del Vermo, 192 NY 470, 478-482 [1908]). Weconclude that any error by the People in failing to lay a foundation by calling a ballistics expertto explain the relationship between .380 caliber and 9 millimeter ammunition was harmless,because the admission of the cartridges could not have affected the verdict (see People vCrimmins, 36 NY2d 230 [1975]). We have considered and rejected defendant's remainingarguments concerning this evidence.
The court properly declined to charge justification since there was no reasonable view of theevidence, when viewed most favorably to defendant, to support that defense. Defendant testifiedthat at the time the pistol discharged, he had already acquired it from the deceased, leaving thedeceased unarmed. Accordingly, any use of force at that time was clearly unjustifiable (seePeople v Rodriguez, 262 AD2d 140 [1999], lv denied 93 NY2d 1026 [1999]). In anyevent, the absence of a justification charge was harmless. Defendant was acquitted of intentionalmurder, but convicted of felony murder. Regardless of whether, in the abstract, the justificationdefense could ever apply to felony murder, it is clear, under the present facts, that the jury couldnot have reasonably found that defendant killed the deceased in the course of a robbery, but wasnevertheless somehow justified within the meaning of Penal Law § 35.15.
The court properly denied defendant's CPL 330.30 (2) motion to set aside the verdict on[*2]the ground of alleged juror misconduct. There is no basis fordisturbing the court's credibility determinations (see People v Prochilo, 41 NY2d 759,761 [1977]), or its conclusion that there was no basis to set aside the verdict (see People vRodriguez, 100 NY2d 30, 34-36 [2003]). We perceive no basis for reducing the sentence.Concur—Andrias, J.P., Catterson, Renwick, Richter and RomÁn, JJ.