| People v Thompson |
| 2010 NY Slip Op 06012 [75 AD3d 760] |
| July 8, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v CraigThompson, Also Known as Fella, Also Known as Money, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Schenectady County (Hoye, J.),rendered December 18, 2008, upon a verdict convicting defendant of the crimes of murder in thesecond degree, criminal possession of a weapon in the second degree, reckless endangerment inthe first degree, tampering with physical evidence (two counts) and criminal possession of aweapon in the fourth degree.
Defendant was indicted for various crimes relating to the shooting death of Hassan Rainey.Defendant and his friends, Kassun Brown and Keith Dunbar, as well as Rainey, were allinvolved with selling drugs and had a dispute over money and drug sales during late August andearly September 2007. On September 12, 2007, Dunbar was shot in the shoulder during anincident in which Rainey was involved. The next day, after Dunbar was discharged from thehospital, defendant was driving around in his minivan with Brown and Dunbar[FN*]and came upon Rainey in his car at a red light. At defendant's urging, Brown pulled up alongsideRainey's vehicle in such a way that the passenger-side door of the minivan was lined up withRainey's [*2]driver-side door. Defendant and Brown then shot atRainey's vehicle and fled. It was subsequently determined that a .40 caliber bullet causedRainey's death.
Following a jury trial, defendant was convicted of murder in the second degree, criminalpossession of a weapon in the second degree, reckless endangerment in the first degree,tampering with physical evidence (two counts) and criminal possession of a weapon in the fourthdegree. Defendant was thereafter sentenced to an aggregate prison term of 27
Defendant challenges the legal sufficiency and/or weight of the evidence presented insupport of his convictions. A conviction is based on legally sufficient evidence when, viewingthe evidence in the light most favorable to the People, " 'there is a valid line of reasoning andpermissible inferences from which a rational jury could have found the elements of the crimeproved beyond a reasonable doubt' " (People v Acosta, 80 NY2d 665, 672 [1993],quoting People v Steinberg, 79 NY2d 673, 682 [1992]; see People v Haskell, 68 AD3d1358, 1359 [2009]). In reviewing whether convictions are supported by the weight of theevidence, we consider the evidence in a neutral light, accord deference to the jury's credibilitydeterminations and, where a contrary verdict would not have been unreasonable, " 'weigh therelative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony' " (People v Bleakley, 69 NY2d 490,495 [1987], quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]; see People v Johnson, 70 AD3d1188, 1189-1190 [2010]).
With regard to his conviction of reckless endangerment in the first degree, we agree withdefendant's contention that the evidence was legally insufficient to demonstrate a grave risk ofdeath to Sharon Alexander (see Penal Law § 120.25), the only potential victimwho County Court referenced in its charge to the jury. Alexander testified that she was walkingdown the street when defendant's minivan pulled up alongside Rainey's vehicle and stopped,whereupon several shots were fired from the passenger side window. No evidence was presentedthat defendant was aiming in Alexander's direction or that she was in or near the line of fire(see People v Bennett, 193 AD2d 808, 809 [1993]; see also People v Sallitto,125 AD2d 345, 346 [1986], lv denied 69 NY2d 833 [1987]; compare People vWatson, 299 AD2d 735, 737 [2002], lv denied 99 NY2d 627 [2003]; People vTeets, 293 AD2d 766, 767 [2002], lv denied 100 NY2d 543 [2003]). To thecontrary, Alexander testified that she was about three houses from the corner where the shotswere fired, that she was on the minivan's driver side and that the shots were fired in the oppositedirection of where she was located. Under the circumstances, the evidence did not support afinding that defendant's conduct posed a grave risk of death to Alexander (see People vDavis, 72 NY2d 32, 36-37 [1988]). Accordingly, defendant's conviction of recklessendangerment in the first degree must be reversed.
We also agree with defendant's assertion that his conviction of criminal possession of aweapon in the fourth degree is not supported by legally sufficient evidence. For defendant to befound guilty of this crime, the People were required to prove, among other things, that heknowingly possessed a loaded firearm between August 20 and 27, 2007 (see Penal Law§ 265.01 [1]). While Adrian Scott testified that he saw a .40 caliber gun at Dunbar'sapartment and there was other testimony that such gun belonged to defendant, there was noevidence that defendant was present at Dunbar's apartment or otherwise in possession of the gunduring the relevant time. Thus, defendant's conviction of criminal possession of a weapon in thefourth degree must also be reversed.[*3]
We disagree, however, with defendant's contention thathis convictions of murder in the second degree and criminal possession of a weapon in thesecond degree were against the weight of the evidence because they were predicated on thetestimony of incredible witnesses. Both Brown and Dunbar testified that, on September 13, 2007,defendant possessed the loaded .40 caliber gun that killed Rainey and that defendant fired thefatal shot. Dunbar also testified that, after they left the scene, defendant stated, "I think I hit him"and two other witnesses testified that defendant admitted to them that he killed Rainey. Rainey'scousin, who was riding in the passenger seat of Rainey's vehicle during the attack, testified thatthe shots came from the passenger side of the minivan and that the shooter's build was consistentwith defendant's.
The foregoing testimony was sufficient to establish the elements of murder in the seconddegree and criminal possession of a weapon in the second degree (see Penal Law §125.25 [1]; § 265.03 [1] [b]). While there were some minor inconsistencies between thewitnesses' accounts of the events, there was no inconsistency between the accounts provided byBrown and Dunbar, the witnesses who were present at the time of the shooting. The fact thatsome of the witnesses' testimony was given in connection with cooperation agreements with thePeople, and that such witnesses received some benefit as a result thereof, does not render theirtestimony incredible as a matter of law (see People v Rodriguez, 68 AD3d 1351, 1353 [2009], lvdenied 14 NY3d 804 [2010]; People v Vargas, 60 AD3d 1236, 1238 [2009], lv denied13 NY3d 750 [2009]), especially when considered cumulatively (see People vRodriguez, 68 AD3d at 1353; People v Littebrant, 55 AD3d 1151, 1155 [2008], lv denied12 NY3d 818 [2009]). According deference to the jury's credibility determinations, particularlyin light of their opportunity to view the witnesses and assess their demeanor (see People vHaskell, 68 AD3d at 1360; People v Rodriguez, 68 AD3d at 1352-1353), we do notfind that these verdicts were against the weight of the evidence.
We turn next to defendant's challenges to the proof relating to his convictions of tamperingwith physical evidence. As relevant here, one is guilty of tampering with physical evidencewhere, "[b]elieving that certain physical evidence is about to be produced or used in an officialproceeding or a prospective official proceeding, and intending to prevent such production or use,he [or she] suppresses it by any act of concealment, alteration or destruction" (Penal Law§ 215.40 [2]). With regard to the charge that defendant concealed the minivan used in theshooting, defendant stipulated that the vehicle was involved in the shooting and that it wasthereafter driven to the City of Utica, Oneida County with his knowledge. Janae Wilson testifiedthat defendant drove the minivan to her residence in Utica and placed it in the back of the house.The evidence further established that the minivan was subsequently sold to a third party in NewYork City.
As to the charge that defendant tampered with the .40 caliber gun that was involved in theshooting, defendant contends that the only evidence of his guilt was Scott's testimony thatdefendant admitted that he "got rid of it, broke it down." Defendant argues that, inasmuch as hisadmission was uncorroborated, such evidence was legally insufficient to support his conviction.While it is true that a conviction cannot be predicated solely upon evidence of a defendant'sconfession or admission without additional proof that the offense charged has been committed(see CPL 60.50), the rule requiring corroboration "is satisfied by the production of someproof, of whatever weight, that a crime was committed by someone" (People v Daniels,37 NY2d 624, 629 [1975]; see People vButton, 56 AD3d 1043, 1045 [2008], lv dismissed 12 NY3d 781 [2009]).Defendant's admission here was corroborated by the testimony of a number of witnesses thatdefendant possessed and used the .40 caliber gun during the shooting, and by the recovery of .40[*4]caliber bullets and casings in connection therewith. Inaddition, Scott testified that he saw the .40 caliber gun on the day of the murder, while Dunbartestified that he never saw the gun again and it was never found during the investigation orproduced by anyone involved in the crimes. This evidence, viewed in the light most favorable tothe People, is sufficient to support the jury's finding that defendant intended to, and did, concealthe vehicle and the gun. Furthermore, while a different verdict would, arguably, not have beenunreasonable, we conclude that the convictions of tampering with physical evidence weresupported by the weight of the evidence.
We find no merit to defendant's contention that County Court erred in providing a juryinstruction on accessorial liability. Initially, we note that it is unnecessary that the indictmentspecify that the People were pursuing such a theory (see People v Rivera, 84 NY2d 766,769 [1995]; see People v Duncan, 46 NY2d 74, 79-80 [1978], cert denied 442US 910 [1979]; People v Robinson,53 AD3d 681, 683-684 [2008], lv denied 11 NY3d 794 [2008]). Moreover, thePeople expressly reserved their right to present evidence suggesting that defendant was liable asan accessory, both in their bill of particulars and in open court. It was undisputed that the shotswere fired from a minivan occupied by defendant, Brown and Dunbar, and there was testimonythat defendant encouraged the driver to pull up to Rainey's vehicle and that he shot at Rainey.Even if the jury had concluded that defendant did not actually fire the fatal shot, there was ampleevidence to support the conclusion that he "solicit[ed], request[ed], command[ed], importune[d],or intentionally aid[ed]" the others with the intent to cause Rainey's death (Penal Law §20.00). Thus, the jury instruction on accessorial liability was warranted (see People vLong, 294 AD2d 614, 616 [2002], lv denied 98 NY2d 652 [2002]; see alsoPeople v Hernandez, 298 AD2d 308 [2002]).
We also discern no error in County Court's refusal to instruct the jury that Dunbar was anaccomplice as a matter of law for purposes of corroboration under CPL 60.22. Evidence waspresented at trial that Dunbar did not own or drive the vehicle used in the shooting or possess orfire a weapon, and Dunbar testified that he did not want to retaliate for having been shot theprevious day. In view of this evidence, the jury could have inferred that only defendant andBrown were complicit in the crimes. Thus, Dunbar's status as an accomplice was a question offact for the jury to resolve (see People v Dickenson, 293 AD2d 867, 868 [2002]).
Contrary to defendant's argument, we find that he was not deprived of the effectiveassistance of counsel. Indeed, our review of the record reveals that counsel pursued the onlyplausible trial strategy—attacking the credibility of the parade of witnesses againstdefendant—made appropriate objections throughout the trial and even argued successfullyfor the dismissal or reduction of charges. Considering the totality of the circumstances andnotwithstanding any arguable errors, all of which we find to be harmless (see People v Varmette, 70 AD3d1167, 1172 [2010], lv denied 14 NY3d 845 [2010]), we are satisfied that defendantreceived meaningful representation (seePeople v Major, 68 AD3d 1244, 1245-1246 [2009], lv denied 14 NY3d 772[2010]; People v Jackson, 48 AD3d891, 893 [2008], lv denied 10 NY3d 841 [2008]).
Defendant's remaining contentions have been considered and are unavailing.
Spain, J.P., Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the judgment ismodified, on the law, by reversing so much thereof as convicted defendant of recklessendangerment in the first degree under count four of the indictment (count three submitted to thejury) and criminal possession of a weapon in the fourth degree (count six submitted to the jury);said counts dismissed and the sentences imposed thereon vacated; and, as so modified, affirmed.
Footnote *: Brown was driving the minivan,defendant was in the front passenger seat and Dunbar was in the far rear bench seat.