| People v Garrett |
| 2011 NY Slip Op 07089 [88 AD3d 1253] |
| October 7, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Anthony M.Garrett, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Elma A. Bellini, J.), rendered July 6,2004. The judgment convicted defendant, upon a jury verdict, of murder 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 ofmurder in the first degree (Penal Law § 125.27 [1] [a] [vii]). Viewing the evidence in lightof the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we rejectdefendant's contention that the verdict is against the weight of the evidence with respect to theelement of intent (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Adifferent finding by the jury, i.e., a finding that defendant acted without intent to kill the victim,would have been unreasonable (see generally id.). Defendant admitted that he shot thevictim intentionally in his statements to the police and one of his accomplices. Further, theevidence established that, during the course of the robbery, defendant warned the victim that hewould shoot him in the event that the victim did not turn out his pockets within a count of threeand that defendant followed through on that precise threat. The evidence also established thatdefendant committed the robbery in a calm and methodical manner prior to shooting the victim.In addition, the People presented ballistics evidence demonstrating that the gun used bydefendant could not have been discharged accidently, and nothing concerning the nature of thevictim's wounds cast any doubt on the conclusion that defendant shot the victim with the intent tokill him.
Defendant further contends that County Court erred in admitting evidence related touncharged crimes that he committed in Cleveland immediately prior to being apprehended for theinstant crime (see generally People v Ventimiglia, 52 NY2d 350, 359 [1981]; Peoplev Molineux, 168 NY 264, 291-294 [1901]). We conclude that evidence of defendant'scriminal conduct in Cleveland was relevant "to complete the narrative" of the People's caseinsofar as it established that defendant fled from Rochester and explained why key pieces ofevidence were located in Cleveland (People v Mullings, 23 AD3d 756, 758 [2005], lv denied 6NY3d 756 [2005]; see generally Peoplev Resek, 3 NY3d 385, 389-390 [2004]). Each of those aspects of the narrative, however,could have been established without discussing the details of the Cleveland crimes, i.e., any holesor ambiguities in the narrative "could . . . have been easily dealt with by far lessprejudicial means" (Resek, 3 [*2]NY3d at 390). Wetherefore conclude that the court erred in admitting testimony related to the details of theCleveland crimes. Nevertheless, that error is harmless. The court's instructions severely limitedthe extent to which the jury could rely upon testimony related to the Cleveland crimes (see People v Walker, 84 AD3d842, 843 [2011]). The remaining evidence against defendant, which included his admissionto the crime, was overwhelming, and there was no significant probability that defendant wouldhave been acquitted had the evidence concerning the Cleveland crimes been excluded (seegenerally People v Crimmins, 36 NY2d 230, 241-242 [1975]).
We reject defendant's contention that the court erred in permitting the People to introduceevidence of prior consistent statements made by one of his accomplices. On cross-examination,defense counsel spent considerable time eliciting testimony from that accomplice regarding thefact that he was testifying pursuant to a plea agreement. Defense counsel's apparent strategy inpursuing that line of questioning was to suggest to the jury, however subtly, that the plea dealaccepted by the accomplice provided him with a motive for lying about defendant's involvementin the robbery and murder. The People were free to elicit testimony from the accompliceconcerning his statements that were consistent with his trial testimony and made prior to the dateon which the plea agreement was reached in order to refute defendant's suggestion that theaccomplice had fabricated his testimony (see People v McDaniel, 81 NY2d 10, 18[1993]; People v McClean, 69 NY2d 426, 428 [1987]).
Finally, the sentence is not unduly harsh or severe. Present—Centra, J.P., Peradotto,Carni, Green and Gorski, JJ.