| People v McGee |
| 2011 NY Slip Op 06797 [87 AD3d 1400] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DemetriusMcGee, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Shirley Troutman, J.), renderedMay 20, 2009. The judgment convicted defendant, upon a jury verdict, of attempted murder inthe first degree and reckless endangerment in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofattempted murder in the first degree (Penal Law §§ 110.00, 125.27 [1] [a] [i]) andreckless endangerment in the first degree (§ 120.25). We reject defendant's contention thatthe evidence is legally insufficient to support the conviction (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Defendant was charged as an accessory, and"[a]ccessorial liability requires only that defendant, acting with the mental culpability requiredfor the commission of the crime, intentionally aid another in the conduct constituting the offense"(People v Chapman, 30 AD3d1000, 1001 [2006], lv denied 7 NY3d 811 [2006] [internal quotation marksomitted]; see Penal Law § 20.00). With respect to the attempted murderconviction, the People presented evidence establishing that defendant shared his codefendant'sintent to kill the victim and intentionally aided the codefendant by, inter alia, driving the vehicleinvolved in the shooting, positioning the vehicle to enable the codefendant to get a clear shot atthe victim and operating the vehicle at a high rate of speed in order to evade the police officerspursuing the vehicle (see People v Cabassa, 79 NY2d 722, 728 [1992], cert deniedsub nom. Lind v New York, 506 US 1011 [1992]; People v Rutledge, 70 AD3d 1368 [2010], lv denied 15NY3d 777 [2010]; People v Zuhlke,67 AD3d 1341 [2009], lv denied 14 NY3d 774 [2010]).
With respect to the reckless endangerment conviction, the People presented legally sufficientevidence that, "under circumstances evincing a depraved indifference to human life, [defendantaided the codefendant, who] recklessly engage[d] in conduct [that] create[d] a grave risk of deathto another person" (Penal Law § 120.25; see People v Lozada, 35 AD3d 969, 969-970 [2006], lvdenied 8 NY3d 947 [2007]; People v Zanghi, 256 AD2d 1120, 1122 [1998], lvdenied 93 NY2d 881 [1999]). The evidence at trial established that defendant drove down aresidential street while the codefendant fired shots from the vehicle at numerous houses along thestreet. Two eyewitnesses testified that there were a number of children playing outside andresidents in the street and on their porches at the time of the shooting. Several houses and avehicle were struck by bullets.[*2]
Contrary to the further contention of defendant, weconclude that there is legally sufficient evidence to establish that he and the codefendant sharedthe requisite "community of purpose" for accomplice liability to attach (People v Bray,99 AD2d 470 [1984] [internal quotation marks omitted]; see generally People v Russell,91 NY2d 280, 288 [1998]; People v Rosario, 199 AD2d 92 [1993], lv denied 82NY2d 930 [1994]). Defendant drove down the street at least twice prior to the shooting, operatedthe vehicle at a speed enabling the codefendant to fire multiple shots and strike several housesalong the street and led the police on a high-speed chase in an attempt to evade capture. Inaddition, a jailhouse informant testified that the codefendant informed him that it was the driverof the vehicle, i.e., defendant, who initiated the events that led to the crimes at issue. We thusconclude that "there is a valid line of reasoning and permissible inferences from which a rationaljury could have found the elements of the crime[s] proved beyond a reasonable doubt" (People v Danielson, 9 NY3d 342,349 [2007] [internal quotation marks omitted]).
To the extent that defendant contends that his conviction is not supported by legallysufficient evidence because his uncorroborated admission that he was driving the vehicleinvolved in the shooting was the only evidence identifying him as a participant in the crimes, wereject that contention. Defendant's admission was sufficiently corroborated by, inter alia, thetestimony of civilian witnesses to the shooting and the testimony of police witnesses who wereinvolved in the subsequent vehicle chase, as well as forensic evidence, which provided therequisite "additional proof that the offense[s] charged [had] been committed" (CPL 60.50; seePeople v Chico, 90 NY2d 585, 589-591 [1997]; People v Burrs, 32 AD3d 1299 [2006], lv denied 7 NY3d924 [2006]). Contrary to defendant's contention, "[u]nder CPL 60.50[,] no additional proof needconnect the defendant with the crime" (People v Lipsky, 57 NY2d 560, 571 [1982],rearg denied 58 NY2d 824 [1983]; see People v Daniels, 37 NY2d 624, 629[1975]). In any event, defendant's identity as the driver of the vehicle was established not only byhis admission to that fact but also by the testimony of an officer who observed defendant duringthe vehicle chase and then apprehended him shortly after the chase concluded.
Viewing the evidence in light of the elements of the crimes as charged to the jury (seeDanielson, 9 NY3d at 349), we reject defendant's contention that the verdict is against theweight of the evidence (see generally Bleakley, 69 NY2d at 495). Contrary to the furthercontention of defendant, we conclude that he was not denied a fair trial based on ineffectiveassistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]).Defendant failed to demonstrate the lack of a strategic basis for defense counsel's failure torequest a lesser included offense charge (see People v Clarke, 55 AD3d 370 [2008], lv denied 11NY3d 923 [2009]; see also People vWicks, 73 AD3d 1233, 1236 [2010], lv denied 15 NY3d 857 [2010]; Peoplev Guarino, 298 AD2d 937 [2002], lv denied 98 NY2d 768 [2002]). Indeed,defendant's theory of the case was that he was "just the driver," i.e., that he did not share thecodefendant's criminal intent, not that he only intended to "cause serious physical injury" ratherthan death (Penal Law § 120.05 [1]). We further conclude that defendant was not deniedeffective assistance of counsel based on defense counsel's failure to challenge the probable causefor his arrest inasmuch as any such challenge would have " 'ha[d] little or no chance of success' "(People v Biro, 85 AD3d 1570,1572 [2011], quoting People vStultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]). We haveexamined the remaining allegations of ineffective assistance of counsel raised by defendant andconclude that they lack merit. Viewing the evidence, the law and the circumstances of this case intotality and as of the time of the representation, we conclude that defense counsel providedmeaningful representation (see generally Baldi, 54 NY2d at 147).
Finally, the sentence is not unduly harsh or severe. Present—Fahey, J.P., Peradotto,Lindley, Sconiers and Green, JJ.