| People v Sanchez |
| 2010 NY Slip Op 06185 [75 AD3d 911] |
| July 22, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DavidSanchez, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Torrance L. Schmitz of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered September 5, 2008, upon a verdict convicting defendant of the crimes of murder in thesecond degree and criminal possession of a weapon in the second degree.
On the evening of May 30, 2007, the victim was sitting in his friend Megan Adams' parkedvehicle on Stuyvesant Street in the City of Binghamton, Broome County when fourindividuals—two males and two females—approached the car by foot. The victimexited the car, spoke to the group, and a brief verbal altercation occurred between the victim andone of the men. The victim returned to the car, and Adams drove the vehicle a short way downStuyvesant Street and parked. Approximately one hour later, while the victim was conversingwith several friends outside the parked vehicle, a man rode up to the vehicle on a bicycle, got offand fired two shots, one of which hit the vehicle and the other struck the victim in the chest,inflicting a fatal wound. The shooter then fled the scene on foot. Following a jury trial, defendantwas convicted as charged of murder in the second degree (hereinafter count 1) and criminalpossession of a weapon in the second degree (hereinafter count 2). Defendant was thereaftersentenced to concurrent prison terms of 25 years to life for his conviction of count 1 and 15 yearsfor his conviction of count 2, with five years of postrelease supervision. Defendant now appeals.
Initially, we are unpersuaded that County Court erred in determining that Derrick [*2]Watson's identification of defendant from a police photo array asthe shooter was merely confirmatory, thus obviating the need for a Wade hearing. AWade hearing may be summarily denied "when the witness is so familiar with thedefendant that there is little or no risk that police suggestion could lead to a misidentification"(People v Carter, 57 AD3d1017, 1017 [2008] [internal quotation marks and citations omitted], lv denied 12NY3d 781 [2009]; see People v Rodriguez, 79 NY2d 445, 450 [1992]; People v Allah, 57 AD3d 1115,1116 [2008], lv denied 12 NY3d 780 [2009]). This type of confirmatory identificationexception to the notice and hearing requirements for suggestive pretrial identification "may beconfidently applied where the [identifying witness is a] family member[ ], friend[ ] oracquaintance[ ] or [has] lived [with the defendant] for a time" (People v Rodriguez, 79NY2d at 450). It is the People's burden to prove the witness's sufficient familiarity with thedefendant at a Rodriguez hearing (see People v Rodriguez, 79 NY2d at 452;People v Graham, 283 AD2d 885, 887 [2001], lv denied 96 NY2d 940 [2001]).Factors to be considered include the number of times the witness saw the defendant prior to thecrime, the duration and nature of those encounters, time periods and setting of the viewings, timebetween the last viewing and the crime, and whether the two individuals had any conversations(see People v Rodriguez, 79 NY2d at 451; People v Coleman, 306 AD2d 549,550 [2003]).
Watson, an admitted drug user and seller, was a witness to both the confrontation thatoccurred between defendant and the victim prior to the shooting and the shooting itself. Watsontestified that, prior to May 30, 2007, he lived with defendant and defendant's cousin in the sameapartment for one month. During that time, in addition to seeing defendant on the street outsideof the home, Watson saw defendant each day, albeit for a limited time period, and they wouldcasually greet each other face-to-face. Watson testified that he saw defendant and spoke to himin passing after they ceased living together, and saw him approximately one week prior to theMay 30, 2007 shooting. Notwithstanding testimony that Watson abused drugs and that there wasno electricity in the apartment during the time he resided with defendant, the People establishedthat Watson was sufficiently familiar with defendant prior to the May 30, 2007 incident such thata misidentification would be unlikely (see People v Carter, 57 AD3d at 1018).Accordingly, we find that County Court properly denied defendant's motion for a Wadehearing, since Watson was sufficiently familiar with defendant so "as to be impervious to policesuggestion" (People v Rodriguez, 79 NY2d at 452).
Turning to defendant's argument that the verdict was against the weight of the evidence, sucha review is " 'a two-step approach that requires courts to first determine whether, based on all thecredible evidence, a different finding would not have been unreasonable,' and, if that step issatisfied, 'then the appellate court must, like the trier of fact below, weigh the relative probativeforce of conflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony' " (People vHebert, 68 AD3d 1530, 1531 [2009], lv denied 14 NY3d 841 [2010], quotingPeople v Romero, 7 NY3d633, 643 [2006] [citations omitted]). "Essentially, the court sits as a thirteenth juror anddecides which facts were proven at trial" and, in light of those facts, whether the elements of thecrimes charged have been proven beyond a reasonable doubt (People v Danielson, 9 NY3d 342,348-349 [2007] [citation omitted]). Although the appellate court must review the evidence in aneutral light (see People v Rolle, 72AD3d 1393, 1396 [2010]), "[g]reat deference is accorded to the fact-finder's opportunity toview the witnesses, hear the testimony and observe demeanor" (People v Bleakley, 69NY2d 490, 495 [1987]). While a review of the evidence in this case reveals that a different resultafter trial would not have been unreasonable, we do not find that the verdict was against theweight of the evidence (see People v Bleakley, 69 NY2d at 495; People v Greenwood, 24 AD3d818, 818[*3][2005], lv denied 6 NY3d 813 [2006]).With respect to count 1, the People were obligated to prove that defendant intended to, and did,cause the death of another person (see Penal Law § 125.25 [1]). With respect tocount 2, the People were obligated to prove that defendant possessed a loaded firearm with theintent to use the same unlawfully against another person (see Penal Law § 265.03[1] [b]).
At the trial, Adams identified defendant as the individual with whom the victim engaged inthe earlier confrontation. Nakia Forbes and Maryan Espinal, the two women present during thefirst incident, testified that it was defendant who had the confrontation with the victim. Watsontestified that he observed this confrontation between the victim and defendant from a distance,and that soon afterwards, defendant "rolled up" to him on a bicycle, displayed a gun and askedhim who was down the block. Watson testified that, shortly thereafter, he observed defendantride down Stuyvesant Street towards Adams' vehicle where the victim was sitting, saw defendantstop at the vehicle, and then he saw two "sparks." Adams testified that defendant rode up to thevehicle on a bicycle; she then heard gunshots, saw the victim fall, and saw defendant run away.George Levy and Khalifa Rahim, who were conversing with the victim outside the parkedvehicle immediately prior to the shooting, and Espinal, who was sitting on a nearby porch at thetime of the shooting, also testified that they observed an individual on a bicycle pull up to thevehicle's passenger side and then heard gunshots. Rahim testified that the person on the bicycledropped the bicycle and started shooting. Finally, an inmate housed with defendant after theshooting at the Broome County Correctional Facility testified that defendant admitted that he hadbeen involved in a verbal altercation with the victim and admitted shooting him. While themurder weapon was never recovered and the DNA evidence recovered from the bicycle neitherimplicated nor excluded defendant, police recovered two expended .22 caliber cartridge casingsat the scene and two projectiles—one taken from the victim's body and another imbeddedin Adams' vehicle. Medical evidence established that the victim was struck one time in the chestwith a bullet, resulting in his death within minutes. Defendant's intent to kill can be inferred fromhis statement to the fellow inmate and his firing of two shots at close range. In light of thisevidence and according deference to the jury's credibility determinations, we do not find that theverdict was against the weight of the evidence.
Finally, we reject defendant's contention that his sentence was harsh and excessive. Based onthe nature of the offenses committed and defendant's prior criminal history, we discern noextraordinary circumstances or abuse of discretion warranting a reduction of the sentence(see CPL 470.15 [6] [b]; Peoplev Sabin, 73 AD3d 1390, 1391 [2010]; People v Fairley, 63 AD3d 1288, 1290-1291 [2009], lvdenied 13 NY3d 743 [2009]; People v Minor, 45 AD3d 885, 886 [2007], lv denied 10NY3d 768 [2008]).
Cardona, P.J., Peters, Spain and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.