| People v Lee |
| 2011 NY Slip Op 00105 [80 AD3d 877] |
| January 13, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Omari Lee,Also Known as Omar Lee and O, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Schenectady County (Hoye,J.), rendered July 3, 2008, upon a verdict convicting defendant of the crimes of murder in thesecond degree and criminal possession of a weapon in the second degree (four counts).
Defendant was charged in a 14-count indictment with numerous crimes relating to the April2007 murder of Xavier McDaniel in Schenectady County. Defendant believed that McDaniel hadstolen crack cocaine, cash and a gun from him. While defendant's friend, Allen Blount, distractedMcDaniel by asking to purchase marihuana in McDaniel's car, defendant ran up to the vehicle,opened the door and confronted McDaniel over the stolen items. Defendant then shot McDanieltwice, once in the right hip and once in the chest, killing him.
The matter proceeded to trial and, at the close of the People's case, County Court dismissedthe top count of the indictment charging defendant with murder in the first degree, as well as onecharge of murder in the second degree and four counts of robbery in the first degree. The Peoplethereafter consented to dismissal of count 9 of the indictment, charging defendant with criminalpossession of a weapon in the second degree. Defendant was ultimately convicted of murder inthe second degree and four counts of criminal possession of a weapon in the second [*2]degree. County Court sentenced him, as a second felony offender,to 25 years to life for murder in the second degree and 15 years—to be followed by fiveyears of postrelease supervision—for each count of criminal possession of a weapon. One15-year term was to run concurrently with the sentence for murder in the second degree, with allother sentences running consecutively. Defendant appeals.
Initially, we agree with defendant that the evidence was not legally sufficient to support hisconviction of criminal possession of a weapon in the second degree under count 14 of theindictment. As defendant asserts, Blount was an accomplice as a matter of law inasmuch as "thejury could reasonably reach no other conclusion but that he participated in the offense charged oran offense based upon the same or some of the same facts or conduct which constitute theoffense charged" (People v Caban, 5NY3d 143, 153 [2005] [internal quotation marks and citation omitted]; see CPL60.22 [2]). Thus, defendant could not be convicted upon Blount's testimony absent sufficientcorroborative evidence connecting defendant to the commission of the charged crimes(see CPL 60.22 [1]; People vReome, 15 NY3d 188, 191-192 [2010]).[FN1]
Count 14 of the indictment charged defendant with criminal possession of a weapon in April2007. The People alleged that the weapon was the 9 millimeter handgun held by Blount at themurder scene. Blount testified that he gave the handgun to defendant when he fled to OnondagaCounty shortly after McDaniel's murder. While "much less evidence and of a distinctly inferiorquality is sufficient to meet the slim corroborative linkage to otherwise independently probativeevidence from accomplices" (People v Reome, 15 NY3d at 192 [internal quotation marksand citation omitted]), we agree with defendant that the People failed to present anycorroborative evidence tending to show that defendant possessed the 9 millimeter handgun inmid to late April 2007. Thus, "the corroboration requirement [was] not met," and the "conviction[upon count 14] cannot stand" (id. at 192).
We reject defendant's argument, however, that County Court erred in denying hisBatson objection to the People's use of peremptory challenges against threeAfrican-American jurors in the potential jury pool (see Batson v Kentucky, 476 US 79[1986]). Upon defendant's objection that the three stricken jurors were similarly situated tonon-African Americans who were not stricken, County Court concluded that he had established aprima facie case of [*3]discrimination.[FN2]Hence, the burden shifted to the People to "come forward with a race-neutral explanation foreach challenged peremptory" (People v Smocum, 99 NY2d 418, 422 [2003]). Thatexplanation was not required to be "persuasive, or even plausible"; as long as the reasons for thechallenges are "facially neutral," even "ill-founded" reasons will suffice (People vPayne, 88 NY2d 172, 183 [1996] [internal quotation marks and citations omitted]; see People v Simmons, 31 AD3d1051, 1053 [2006], lv denied 7 NY3d 929 [2006]).
With that standard in mind, we conclude that the People provided a race-neutral explanationfor the challenges, stating that one juror was challenged because he was sleeping and audiblysnoring during the jury selection process, and that—unlike the jurors that defendantclaimed were similarly situated—the other two jurors did not fit the People's preferredprofile of jurors who were married with children, somewhat older, and newspaper readers with astrong connection to the community, such as owning property. Inasmuch as these justificationswere race-neutral and overcame the inference of discrimination, the People met their burden(see People v Alston, 307 AD2d 1046, 1046 [2003], lv denied 1 NY3d 539[2003]; People v Pereira, 292 AD2d 251, 252 [2002], lv denied 98 NY2d 679[2002]; People v Bessard, 148 AD2d 49, 52-53 [1989], lv denied 74 NY2d 845[1989]). Defendant's assertion on appeal that the People's explanation regarding their preferredprofile should be considered pretextual because the People deviated from that profile bychallenging jurors who fit within the profile is not preserved because defendant failed toadvance this argument before County Court (see People v Smocum, 99 NY2d at 423;People v Payne, 88 NY2d at 184). Rather, when given the opportunity to meet his"ultimate burden of persuading the court that the reasons [were] merely a pretext for intentionaldiscrimination" (People v Smocum, 99 NY2d at 422), defendant simply relied upon hisinitial objections. Under these circumstances and deferring to County Court's credibilitydeterminations, we discern no basis to disturb the court's finding that the People's explanationwas not pretextual (see People vKnowles, 79 AD3d 16, 21-22 [2010]; People v Simmons, 31 AD3d at 1053; People v Skervin, 13 AD3d 661,662 [2004], lv denied 5 NY3d 833 [2005]).
Defendant further argues that County Court denied him a fair trial by permitting proof of hisinvolvement—along with Blount—in the drug trade and with a street gang, hisgiving a false name and date of birth to police when he was shot after McDaniel's murder, and hispossession of guns on dates other than those charged in the indictment. With respect to gunpossession specifically, defendant challenges the proof regarding his prior possession of the 9millimeter handgun that was the subject of count 14, the .22 caliber handgun used to shootMcDaniel, and the .357 revolver that defendant believed McDaniel had stolen from him. It iswell settled that evidence of uncharged crimes may be admitted "when the evidence is relevant toa pertinent issue in the case other than a defendant's criminal propensity to commit the crimecharged," but only if "its probative value for the jury outweighs the risk of undue prejudice to thedefendant" (People v Till, 87 NY2d 835, 836 [1995]; see People v Giles, 11 NY3d 495, 499 [2008]; People vRojas, 97 NY2d 32, 37 [2001]).[*4]
Here, County Court properly admitted the evidence ofgang membership and drug dealing activities to show defendant's motive for murderingMcDaniel and his relationship to Blount, and to provide necessary background information (see People v Smith, 63 AD3d1301, 1303 [2009], lv denied 13 NY3d 862 [2009]; People v Faccio, 33 AD3d 1041,1042 [2006], lv denied 8 NY3d 845 [2007]; People v Williams, 28 AD3d 1005, 1007-1008 [2006], lvdenied 7 NY3d 819 [2006]). The evidence regarding prior possession of the guns wasinextricably interwoven with the charged crimes and tended to show the manner in whichdefendant came into possession and had access to the various weapons involved at the relevanttimes given in the indictment (see People v Williams, 28 AD3d at 1008; People v Tarver, 2 AD3d 968,968-969 [2003]). Furthermore, the evidence that defendant supplied police with false identifyinginformation and a misleading story of how he obtained a gunshot wound demonstratedconsciousness of guilt (see People v Till, 87 NY2d at 837). In our view, "[t]he probativevalue of this . . . evidence outweighed the prejudice, and the court deliveredadequate instructions to the jury regarding the proper use of this information" (People vFaccio, 33 AD3d at 1042; seePeople v Mullings, 23 AD3d 756, 758-759 [2005], lv denied 6 NY3d 756[2005]).
Finally, there is no merit to defendant's claim that he received ineffective assistance ofcounsel inasmuch as he has failed to demonstrate the absence of a strategic explanation forcounsel's alleged shortcomings (seePeople v Hines, 24 AD3d 964, 966 [2005], lv denied 6 NY3d 834 [2006]).
Malone, Jr., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment ismodified, on the law, by reversing so much thereof as convicted defendant of the crime ofcriminal possession of a weapon in the second degree under count 14 of the indictment; saidcount dismissed; and, as so modified, affirmed.
Footnote 1: Although defense counselspecifically requested that County Court not instruct the jury that Blount was an accomplice as amatter of law—and, thus, any challenge to the jury charge is notpreserved—defendant preserved his challenge to the distinct legal issue of the sufficiencyof the corroborative evidence by a motion to dismiss at the close of the People's case that wasboth specifically directed at the error now alleged on appeal and renewed after defendantpresented evidence (see People vHines, 24 AD3d 964, 965-967 [2005], lv denied 6 NY3d 834 [2006]; Peoplev Mahan, 195 AD2d 881, 882-883 [1993]; People v Rivers, 169 AD2d 883, 884-885[1991], lv denied 77 NY2d 999 [1991], lv denied upon reconsideration 78 NY2d1080 [1991]; People v Conklin, 139 AD2d 156, 160 [1988], lv denied 72 NY2d1044 [1988]; see also People v Hines, 97 NY2d 56, 61 [2001]; but see People v Wesley, 19 AD3d937, 937-938 [2005], lv denied 5 NY3d 857 [2005]).
Footnote 2: When, as here, the trial courthas ruled on the ultimate question of intentional discrimination, the question of whether amoving party has made a prima facie case becomes moot (see People v Smocum, 99NY2d 418, 422-423 [2003]; People v Payne, 88 NY2d 172, 182 [1996]).