| People v Molson |
| 2011 NY Slip Op 08427 [89 AD3d 1539] |
| November 18, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Darrius S. Molson,Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Theresa L. Prezioso of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.), rendered June29, 2010. The judgment convicted defendant, upon a jury verdict, of murder in the second degree andcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of murder in thesecond degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the seconddegree (§ 265.03 [3]), defendant contends that the evidence is legally insufficient to establish hisliability as an accessory. We reject that contention. "Accessorial liability requires only that defendant,acting with the mental culpability required for the commission of the crime, intentionally aid another inthe conduct constituting the offense" (Peoplev Chapman, 30 AD3d 1000, 1001 [2006], lv denied 7 NY3d 811 [2006] [internalquotation marks omitted]; see § 20.00). Here, we conclude that there was evidencefrom which the jury could have reasonably inferred that defendant and his accomplice shared "acommon purpose and a collective objective" (People v Cabey, 85 NY2d 417, 422 [1995]),and that "defendant either shot the victim or shared in the intention of the [accomplice] to do so"(People v Morris, 229 AD2d 451 [1996], lv denied 88 NY2d 990 [1996]).Immediately prior to the shooting, the victim was located on the porch of a house with one of thewitnesses. That witness testified that, before she fled into the house, she observed defendant approachthe porch with a gun raised toward the victim (see People v Irizarry, 233 AD2d 209, 209-210[1996], lv denied 89 NY2d 924 [1996]). The People also presented evidence establishingthat, just before the shooting, defendant overheard the accomplice state that he was going to "fxxx [thevictim] up," and the People further established that defendant arrived at and left the scene with thataccomplice (see People v Carter, 293 AD2d 484 [2002], lv denied 99 NY2d 626[2003]). Moreover, shortly after his arrest, defendant told a jail officer that he had "just committedmurder."
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342,349 [2007]), we reject defendant's further contention that the verdict is against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We conclude that "anacquittal would not have been unreasonable" inasmuch as the jury could have concluded thatdefendant's accomplice fired all of the shots and that the identification made by [*2]the witness who observed defendant approach the porch was mistaken(Danielson, 9 NY3d at 348). We further conclude, however, that the jury was justified infinding defendant guilty beyond a reasonable doubt in light of the evidence of accessorial liability setforth above (see id.).
Defendant contends that County Court erred in refusing to suppress an identification of defendantfrom the second photo array shown to the witness who observed defendant approach the porchbecause that identification procedure was unduly suggestive. We reject that contention. The mere factthat the police show a witness multiple photo arrays does not render the second photo array suggestivewhere, as here, the police mitigated any potential suggestiveness by using a markedly differentphotograph of the defendant in the second photo array and placing it in a different location than in thefirst photo array (see People v Daniels, 202 AD2d 987 [1994]). Further, the second photoarray was not rendered unduly suggestive by the fact that defendant was the only individual depicted inboth photo arrays (see id.), or by the fact that the witness failed to identify defendant in the firstphoto array (see People v Brennan, 261 AD2d 914 [1999], lv denied 94 NY2d 820[1999]). We conclude that the composition and appearance of the second photo array was not undulysuggestive. The individuals depicted therein were generally similar in appearance to defendant, inasmuchas they all were black males who appeared to be of similar age and skin tone, and the photographswere similarly cropped (see generally Peoplev McBride, 14 NY3d 440, 448 [2010], cert denied 562 US —, 131 S Ct327 [2010]).
Contrary to defendant's further contention, the statement of his accomplice that he wanted to "fxxx[the victim] up" was not hearsay, and the court therefore properly admitted that statement in evidence.Defendant was present when his accomplice made that statement, and the People sought to admit thestatement in evidence to provide circumstantial evidence of defendant's state of mind, i.e., thatdefendant went to the crime scene with the accomplice knowing that violence was likely to result, not toprove the truth of the matter asserted by the accomplice (see People v Davis, 58 NY2d 1102,1103 [1983]; People v Daniels, 265 AD2d 909, 910 [1999], lv denied 94 NY2d 878[2000]).
We agree with defendant that the court erred in admitting in evidence his statement to anotherindividual that he was asked to leave a bar shortly before the shooting because the bar's manager "saidhe had a gun." That statement, although made by defendant, constituted double hearsay and involvednothing more than defendant's repetition of a statement made by the manager. Thus, despite the generalrule that an out-of-court statement by a criminal defendant is admissible against that defendant (seePeople v Chico, 90 NY2d 585, 589 [1997]; People v O'Connor, 21 AD3d 1364, 1366 [2005], lv denied 6NY3d 757 [2005]), defendant simply recounted the statement of another, and thus the statement inquestion was inadmissible (see People v Smith, 172 NY 210, 236 [1902]). We neverthelessconclude that such error is harmless. The evidence of defendant's guilt was overwhelming, and therewas no significant probability that defendant would have been acquitted had his statement beenexcluded (see People v Kello, 96 NY2d 740, 744 [2001]; see generally People vCrimmins, 36 NY2d 230, 241-242 [1975]). Indeed, there was other evidence at trial, includingthe testimony of the witness who observed defendant approach the porch, that placed him at the sceneof the shooting with a gun. In addition, another witness testified that he saw two men fleeing the area ofthe shooting and that one of the individuals had a gun. According to that witness, the individual with thegun was wearing clothing that matched the description of defendant's clothing on the night of the murderprovided by the witness who observed him on the porch.
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Carni, Lindley,Sconiers and Green, JJ.