| People v Hernandez |
| 2011 NY Slip Op 07744 [89 AD3d 1123] |
| November 3, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joel Hernandez,Also Known as Haze, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Schenectady County (Giardino, J.),rendered December 19, 2008, upon a verdict convicting defendant of the crimes of attempted assault inthe first degree (two counts), assault in the second degree (two counts), criminal possession of aweapon in the second degree (two counts) and reckless endangerment in the first degree.
Defendant was convicted, following a jury trial, of various crimes stemming from a shootout thatoccurred in August 2007 in the City of Schenectady, Schenectady County, allegedly between himself,codefendant Charles Ardrey and Diondrea McCaskill, the paramour of Ardrey's ex-girlfriend, duringwhich two innocent bystanders were injured. Defendant thereafter was sentenced as a second felonyoffender to an aggregate term of 30 years in prison with five years of postrelease supervision. Ondefendant's appeal, we now affirm.
Initially, County Court did not, as asserted by defendant, commit reversible error in itsMolineux ruling. Prior to trial, the People sought to introduce evidence of a January 2007Vermont drug conviction, based on guilty pleas made by defendant and Ardrey to possessing 27 smallpackages of crack cocaine with the intent to sell, which were physically retrieved from Ardrey's body.Here, following the August 2007 shooting, Ardrey was again found in possession [*2]of crack cocaine, leading to several drug-related crimes for whichdefendant was also indicted, but not convicted. The People argued that the 2007 conviction wasprobative of defendant's intent to act in concert with Ardrey to constructively possess and sell thecocaine; they also sought to introduce evidence of defendant's alleged gang affiliation and other priordrug dealing and gun possession charges as additional evidence of intent and motive.
Where, as here, there is a proper nonpropensity purpose to the admission of prior bad acts,namely, defendant's intent to possess and sell cocaine recovered from Ardrey, "the decision whether toadmit [such] evidence . . . rests upon the trial court's discretionary balancing of probativevalue and unfair prejudice" (People vBarreto, 64 AD3d 1046, 1049 [2009], lv denied 13 NY3d 834 [2009] [internalquotation marks and citations omitted]). Our review of the record reveals that County Court balancedthe prejudice to defendant against the probative value of the proffered evidence, and ultimatelypermitted the introduction of the Vermont drug-related conviction as relevant to the People's theory ofthe case that defendant and Ardrey were accomplices in the newly charged drug-related crimes, butdenied the People's request to introduce evidence of gang affiliation and the other prior charges. Underthese circumstances, we reject defendant's contention that County Court failed to engage in a properMolineux analysis or otherwise abused its discretion (see People v Alvino, 71 NY2d233, 242 [1987]; People v Barreto, 64 AD3d at 1049; People v Echavarria, 53 AD3d 859, 863 [2008], lv denied 11NY3d 832 [2008]).
Defendant also argues that the jury's finding that he possessed and fired a weapon was against theweight of the evidence because none of the People's witnesses testified to actually seeing him hold andfire a weapon during the shootout. We disagree, based on the strong circumstantial evidence supportingthe jury's findings. Testimony from witnesses established that defendant was in possession of a handgunthe day prior to the incident, which he purchased in Rutland, Vermont and brought to Schenectady, andthat defendant and Ardrey had each armed themselves with handguns at a Schenectady apartmentshortly before the shooting. A female acquaintance of defendant testified that she drove defendant andArdrey from that apartment around Schenectady until they spotted McCaskill and exited the vehicle,whereupon McCaskill pulled out a handgun and began firing at them. Although she could not see hishand, she observed defendant with his back toward her and his right arm extended at an approximate90-degree angle while gunshots sounded around them.
According to defendant's female acquaintance, after defendant—sporting a gunshot woundto the arm—and Ardrey got back in her car, defendant handed a gun to Ardrey, who haddiscarded his own weapon prior to getting back in the car. When the car was then stopped by police,Ardrey ran from the vehicle, throwing the handgun to the ground, where it was recovered. She thendrove defendant back to the apartment as the police pursued Ardrey. At the apartment, defendant toldanother friend that McCaskill had started shooting at him and that he had returned fire. At the scene ofthe shootout, the police recovered expended shell casings from three different handguns, and a testconducted by the State Police revealed that a casing found at the crime scene had been fired by the gundiscarded by Ardrey and recovered by police. According appropriate deference to the jury's credibilitydeterminations (see People v Romero, 7NY3d 633, 645 [2006]) and considering the evidence in a neutral light along with the reasonableinferences that can be drawn therefrom, we conclude that the jury's finding that defendant was inpossession of a handgun that he fired at McCaskill is supported by the weight of the credible evidence(see Penal Law §§ 110.00, 120.10 [1]; § 120.05 [2]; § 120.25;§ 265.03 [1], [3]; People v Bleakley, 69 NY2d 490, 495 [1987]; People v Malcolm, 74 AD3d 1483,1485-1486 [2010], lv denied 15 NY3d 954 [2010]; People v Stewart, 68 AD3d 1438, 1439-1440 [2009], lvdenied 14 NY3d 773[*3][2010]).
Defendant failed to preserve his argument that he was deprived of a fair trial when—attrial—County Court allowed the People, and for that matter, defense counsel, to use hisnickname "Haze" and occasionally other parties' nicknames (see CPL 470.05 [2]). In anyevent, given that defendant's nickname is not inherently prejudicial in nature, that his nickname wasprobative of his identity as he was known and identified by many of the witnesses by that name, andthat County Court instructed the jury that it could not consider his nickname as any evidence of guilt tothe crimes charged, we conclude that the use of defendant's nickname did not deprive him of a fair trial(see People v Hoffler, 41 AD3d891, 892-893 [2007], lv denied 9 NY3d 962 [2007]; People v Crowder, 2 AD3d 454, 455[2003], lv denied 2 NY3d 739 [2004]; cf. People v Bellamy, 26 AD3d 638, 640-641 [2006]; People vLauderdale, 295 AD2d 539, 540 [2002]).
Likewise, we reject defendant's remaining contentions, finding that he was not prejudiced by theprosecutor's reference during summation to defendant in the context of Ardrey's statement to police(see Bruton v United States, 391 US 123 [1968]). The prosecutor properly referred only toArdrey's redacted statement, and his use of the statement to draw inferences about defendant'sparticipation in the crime by linking it to other trial evidence was permissible (see People v Pagan, 87 AD3d 1181,1183-1185 [2011]). Nor do we find any basis to justify a reduction in his sentence, which was withinthe statutory guidelines (see Penal Law § 70.06 [3] [b]; [6] [a]), given the brazen natureof defendant's crimes and his lengthy criminal history (see CPL 470.15 [6] [b]; People v Sudler, 75 AD3d 901, 906[2010], lv denied 15 NY3d 956 [2010]; People v Davis, 4 AD3d 567, 568 [2004], lv denied 2 NY3d798 [2004]).
Peters, J.P., Lahtinen, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.