| People v Timmons |
| 2010 NY Slip Op 07835 [78 AD3d 1241] |
| November 4, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JermayneTimmons, Also Known as Maine, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered March 6, 2009, upon a verdict convicting defendant of the crime of murder in the seconddegree.
Defendant, who was 15 years old at the time, armed himself with a gun and, along with twoneighborhood companions, rode his bike into another neighborhood in the City of Albany. He and hiscompanions stopped at the intersection of First Street and Judson Street, where they saw threeteenaged boys. After a brief "stare down," defendant pulled the gun out of his pocket and the three rivalboys began running up First Street. Defendant then fired a shot up First Street, in the direction of therunning boys. Seconds later, another unidentified group of boys returned fire, shooting approximatelythree times at defendant's companions as they fled down First Street while defendant fled on JudsonStreet. When defendant was at the intersection, the victim, a 10-year-old girl, was on the front steps ofher home, located more than a block up First Street from the intersection. A bullet struck her, quicklycausing her death.
Defendant was charged as a juvenile offender with intentional murder in the second degree,depraved indifference murder in the second degree, manslaughter in the first degree, manslaughter in thesecond degree and criminal possession of a weapon in the second degree. [*2]County Court denied his motion to dismiss one or both of the murdercharges. At trial, the jury convicted defendant of depraved indifference murder in the second degreeand criminal possession of a weapon in the second degree.[FN*]The court sentenced defendant as a juvenile offender to a prison term of 15 years to life. Defendantappeals.
County Court did not err in submitting both murder counts to the jury. While courts should notregularly permit the People to go forward on both intentional and depraved indifference murder asalternate theories, such twin counts may be submitted to the jury in rare instances (see People v Suarez, 6 NY3d 202,215 [2005]; People v Rollins, 51 AD3d1279, 1281 [2008], lv denied 11 NY3d 922 [2009]). This is one such instance.Defendant could have intended to murder one of the fleeing boys and been found guilty of intentionalmurder of the victim under a transferred intent theory, or he could have been found to have acted withdepraved indifference by shooting a gun on a crowded street. As he could have possessed differentmental states with regard to the different potential victims, the court did not err in letting the juryconsider both murder counts in the alternative (see People v Page, 63 AD3d 506, 507-508 [2009], lv denied13 NY3d 837 [2009]; People vHamilton, 52 AD3d 227, 228 [2008], lv denied 11 NY3d 737 [2008]; People v Craft, 36 AD3d 1145,1147-1148 [2007], lv denied 8 NY3d 945 [2007]).
Defendant's conviction is based upon legally sufficient evidence and is not against the weight of theevidence. Defendant contends that the People failed to prove the element of depraved indifference orthat the fatal bullet came from defendant's gun. The Court of Appeals has stated that firing into a crowdand endangering innocent bystanders is a quintessential example of depraved indifference to human life(see People v Payne, 3 NY3d 266,271-272 [2004]; People v Russell, 91 NY2d 280, 289-290 [1998]). In his written statementobtained by the police, defendant admitted possessing a loaded handgun and firing it on a residentialstreet. He also acknowledged that he noticed "7 or 8 other people up First Street," including "an oldlady up the street, a couple of other adults and a couple of kids." This testimony was supported by oneof his companions, who testified that at the time of the shooting, there were "people everywhere, on thecorner, on the street." This evidence was legally sufficient to demonstrate that defendant was aware ofthe presence of innocent people on the street but callously acted without any regard for their safety orthe risk of death to those people when he fired a shot on the crowded street. Although defendanttestified that he shot only because he thought one of the other boys was going to pull out a gun and hewanted to scare away the neighborhood rivals, the jury could choose not to accept that allegedjustification.
The People sufficiently proved that the fatal shot was fired by defendant. A .45 caliber bullet wasremoved from the victim's body. A .45 caliber casing was recovered at the intersection wheredefendant admittedly fired a handgun. An expert testified that a .45 caliber bullet could travel up to amile and, based on scientific testing, that the bullet recovered from the victim's body struck her at avelocity and trajectory consistent with a bullet traveling the approximately 1,060 feet from theintersection where defendant stood to the stoop where the victim was shot. Numerous witnessestestified that defendant was the only person to shoot up [*3]FirstStreet—i.e., in the direction of the victim—and that the shots fired by other people wereaimed down First Street. This evidence was legally sufficient to establish that defendant was the personwho shot the victim. Defendant testified that the gun he possessed, which was never recovered after hedisposed of it, was a .32 caliber revolver rather than a .45 caliber semi-automatic handgun like theweapon that killed the victim. In his statement to police, however, he identified the gun he shot as asemi-automatic. Testimony from other witnesses raised a possibility that the gun may have been arevolver or a different caliber, but that testimony was far from certain. Defendant also testified that heaimed at a boy diagonally on the corner, rather than directly up the street in the direction of the victim,and that he shot downward so that the bullet struck the ground. The jury was free to disbelieve thistestimony, especially considering his conflicting testimony and in-court demonstration of how he held thegun, which would project the bullet straight from shoulder level rather than downward. Giving deferenceto the jury's credibility determinations, the verdict finding that defendant fired the fatal shot was notagainst the weight of the evidence (seePeople v Parker, 29 AD3d 1161, 1163 [2006], affd 7 NY3d 907 [2006]).
Defendant's argument concerning the admission of his apology notes to the victim's mother isunpreserved, as he did not object to their admission. Similarly, he did not object to most of thestatements in the prosecutor's opening and summation. Considering the few statements for which hisargument is preserved, reversal is not required because County Court sustained the objections orissued cautionary instructions to the jury in regard to some of the statements and the remainder were afair response to the defense closing, fair comment on the evidence or not pervasive so as to necessitatea new trial (see People v McCall, 75AD3d 999, 1002 [2010]).
County Court did not err in admitting four autopsy photos. The trial court has discretion to admitsuch photographs if they support a disputed or material issue or are used to illustrate a point to the jury;a court must deny admission only if the photos "are proffered solely to arouse the jury's emotions andprejudice the defendant" (People v Ford,43 AD3d 571, 574 [2007], lv denied 9 NY3d 1033 [2008]). The photos here, whichwere not particularly gruesome, were used to show the trajectory of the bullet, the path it took throughthe victim's body and its reduced velocity. This information supported the testimony of the medicalexaminer regarding cause of death and the expert who testified regarding the bullet's velocity andtrajectory in relation to where defendant fired a shot. While defendant asserts that he did not contest thecause of death, the photos were used for more than that purpose. In any event, the prosecution doesnot necessarily know, when presenting its case, what aspects of the proof a defendant will contest, andthe People may reasonably present photographs to prove all material and possibly disputed issuesrelating to a defendant's guilt. Additionally, the court issued prompt instructions that the jury avoidemotion when viewing the exhibits (see id.). Thus, the court did not abuse its discretion inadmitting the photos (see People vThibeault, 73 AD3d 1237, 1243 [2010], lv denied 15 NY3d 810 [2010]).
Similarly, County Court did not err by permitting the People to elicit testimony from a detective onredirect concerning information in his investigative notes. This was not improper bolstering. Defendantopened the door to this testimony by implying on cross-examination that the detective fabricated hisdirect testimony regarding defendant's statements about the weapon he used. The People were thenproperly allowed to rehabilitate the detective's credibility by showing that he had made prior consistentstatements (see People v Seit, 86 NY2d 92, 95-96 [1995]).[*4]
The sentence was not harsh or excessive. Although defendantwas only 15 years old when the shooting occurred, he was on probation from Family Court at the time.As County Court noted, defendant was intelligent and had numerous resources offered to him, yet onthe day in question he chose to skip school, smoke marihuana, arm himself with a handgun, ride withcompanions into a rival neighborhood looking for trouble, pull out his gun and shoot at boys who wererunning away from him despite seeing numerous people in the street. These brazen actions resulted inthe senseless death of a young girl in front of her own home. Defendant admitted shooting a gun on aresidential street, but continued to deny that his shot killed the victim. The maximum sentence wasimposed not only to punish defendant for his callous actions, but to deter other young people fromcarrying weapons and shooting them indiscriminately.
Mercure, J.P., Malone Jr., Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: The conviction of criminalpossession of a weapon—not a juvenile offender crime—was set aside and deemed anullity based on defendant's conviction of murder in the second degree—a juvenile offendercrime (see CPL 310.85 [1], [2]).