| People v Johnson |
| 2010 NY Slip Op 09022 [79 AD3d 1264] |
| December 9, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jamar Johnson,Also Known as Jams, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered January 16,2009 in Albany County, upon a verdict convicting defendant of the crimes of murder in the seconddegree, conspiracy in the second degree, criminal possession of a weapon in the second degree andcriminal possession of a weapon in the third degree.
The husband of Tammara McCoy, defendant's girlfriend, was fatally shot in the head. In connectionwith this homicide, defendant was charged with murder in the second degree, manslaughter in the firstdegree, conspiracy in the second degree and criminal possession of a weapon in the second degree. Aspart of the same indictment, he was charged with criminal possession of a weapon in the second degreeand criminal possession of a weapon in the third degree for possessing two handguns that wereapparently not used in the murder. Supreme Court denied defendant's motion to sever those twocounts. At the end of a trial, the jury acquitted defendant of the count of criminal possession of aweapon in the second degree for a handgun unrelated to the murder, did not address thelesser-included manslaughter count, and convicted him of the other counts. Defendant appeals.
Supreme Court did not abuse its discretion by refusing to sever two counts of the indictment. Thosecounts were properly joinable because they are defined by the same or similar [*2]statutory provisions as the count of criminal possession of a weapon inthe second degree related to the handgun used to commit the murder (see CPL 200.20 [2][c]). Under those circumstances, the decision regarding severance rested in the court's sound discretion(see CPL 200.20 [3]; People vNickel, 14 AD3d 869, 870 [2005], lv denied 4 NY3d 834 [2005]). Defendanttestified as to all of the charges, demonstrating that he was not persuaded against testifying on any countdue to the joinder (see CPL 200.20 [3] [b]). The jury acquitted him of one of the weaponcharges, showing that the jury could separately consider the proof on each count (see CPL200.20 [3] [a]). Thus, the court did not abuse its discretion in denying the severance motion.
The evidence was legally sufficient to support the count for criminal possession of the weaponunrelated to the murder, and the verdict was not against the weight of the evidence. Upon executing asearch warrant at defendant's apartment, the police discovered a shoe box in the closet. The boxcontained two handguns, ammunition and personal papers. The handgun at issue was test-fired andfound to be operable. Defendant's landlord testified that no one other than defendant lived in theapartment, establishing his dominion and control over the closet where the contraband was located (see People v Carter, 74 AD3d 1375,1377-1378 [2010], lv denied 15 NY3d 772 [2010]; People v Edwards, 39 AD3d 1078, 1079 [2007]). This evidence waslegally sufficient to establish the charge (see Penal Law § 265.02 [1]).[FN*]Defendant testified that only he and his minor son lived in the apartment. He testified that the shoeboxand paperwork were his, but that he did not own the handguns or ammunition and he was certain thatthey did not belong to his young son. He had never seen the guns and implied that they were placedthere during a recent break-in or planted by the police. The jury disbelieved defendant's testimonydenying knowledge or ownership of the guns, instead crediting that of the officers. Accepting thesecredibility determinations, the weight of the evidence supported the verdict on this count (seePeople v Carter, 74 AD3d at 1377-1378).
The murder, conspiracy and weapon charges were supported by the evidence. Several officerstestified that defendant gave an oral statement confessing to these crimes. A typewritten, but unsigned,copy of the statement was admitted into evidence. In that statement, defendant admitted that he andMcCoy planned to kill the victim and defendant shot the victim with a .357 Magnum handgun. While adefendant may not be convicted solely based upon his or her own confession without additional proofthat the offense has been committed (see CPL 60.50), the corroborating proof need notestablish guilt or every detail of the crime or confession, and need only show that the crime has beencommitted by someone (see People vCole, 24 AD3d 1021, 1024-1025 [2005], lv denied 6 NY3d 832 [2006]). It wasundisputed that the victim was fatally shot. A restaurant employee remembered McCoy and the victimas customers a short time before the shooting. Phone records show numerous calls between defendantand McCoy at times consistent with communications noted in defendant's statement, including whenMcCoy was leaving the restaurant and as soon as she got out of her car in the parking lot where theshooting occurred. Witnesses saw McCoy exiting her car within moments of the shooting. Police foundan operable .357 Magnum handgun in the river near where defendant stated he had disposed of themurder weapon. The medical examiner testified that he could not be certain of the caliber of weaponthat killed the victim, but the wounds were consistent with a .357 bullet. Police also discovereddefendant's clothing in a garbage bag inside a dumpster by his apartment, consistent with his statementof how he had disposed of the clothing he wore during the murder. No [*3]witness could identify the murderer, but several witnesses testified that theshooter wore clothing consistent with that found by police in the dumpster. Although the eyewitnessesoffered inconsistent versions of the incident, they each offered some details that were consistent withdefendant's statement or the testimony of other eyewitnesses. Defendant's testimony provided the jurywith his version of his whereabouts on the evening of the murder; he testified that the statement wasfabricated by police and that he did not commit any of the alleged crimes. Giving deference to the jury'scredibility determinations, defendant's confession was sufficiently corroborated and the verdict was notagainst the weight of the evidence (seePeople v Rosado, 36 AD3d 965, 966-967 [2007], lv denied 9 NY3d 993 [2007]).
Supreme Court did not err in overruling defendant's hearsay objection to a police officer'stestimony. Hearsay is defined as an out-of-court statement introduced to prove the truth of the matterasserted therein (see Nucci v Proper, 95 NY2d 597, 602 [2001]; People v Brensic,70 NY2d 9, 14 [1987]). The officer testified that, during his interview of defendant at the police station,McCoy appeared in the doorway and told defendant to "[t]ell the truth." This sentence was acommand, not a statement that can be proven true or false. Even so, it was offered here to show itseffect on defendant, namely that he cried, changed his story and confessed to the crimes after McCoyspoke to him (see People v Howard, 299 AD2d 647, 648 [2002], lv denied 99NY2d 629 [2003]). As the sentence uttered was not hearsay, the court properly overruled defendant'sobjection.
Spain, J.P., Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant acknowledged prior totrial that he had previously been convicted of a crime.