| People v Carter |
| 2012 NY Slip Op 04845 [96 AD3d 1520] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DarnellCarter, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered June17, 2010. The judgment convicted defendant, upon a jury verdict, of murder in the second degree(two counts), robbery in the first degree (two counts), criminal use of a firearm in the first degreeand criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is modified on the law by directingthat all sentences imposed shall run concurrently and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia,two counts of murder in the second degree (Penal Law § 125.25 [1], [3]) and one count ofcriminal possession of a weapon in the second degree (§ 265.03 [3]), defendant contendsthat the evidence is legally insufficient to establish his guilt either as a principal or as anaccomplice. We reject that contention. "Accessorial liability requires only that defendant, actingwith the mental culpability required for the commission of the crime, intentionally aid another inthe conduct constituting the offense" (People v Chapman, 30 AD3d 1000, 1001 [2006], lv denied7 NY3d 811 [2006] [internal quotation marks omitted]; see § 20.00). Here, thePeople presented video evidence that defendant and others met in a mini-mart, where defendantpantomimed the firing of a handgun. Other video evidence establishes that, shortly thereafter,defendant and a group of young men exited the mini-mart, and defendant pulled his scarf over hisface and walked quickly in the direction of the victim. The People also presented witnesses whotestified that the group of men, with defendant in the lead and firing a handgun, chased the victimdown the street. The victim's body was found the next morning, but his jewelry was missing andhis pockets were turned out. The Medical Examiner testified that he died from a gunshot wound.Two of defendant's accomplices sold the jewelry at a pawn shop. In addition, defendant told aNiagara Falls Police Captain that he knew the other men planned to rob the victim and that heaccompanied them in the event that a fight would occur. Consequently, there was evidence fromwhich the jury could have reasonably inferred that defendant and his accomplices 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 [accomplices]to do so" (People v Morris, 229 AD2d 451 [1996], lv denied 88 NY2d 990[1996]). Furthermore, viewing the evidence in light of the elements of the [*2]crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we rejectdefendant's further contention that the verdict is against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]).
In addition, defendant contends that County Court erred in permitting the People to impeachtheir own witness. Even assuming, arguendo, that the court erred in permitting the impeachment,we conclude that any error is harmless (see generally People v Crimmins, 36 NY2d 230,241-242 [1975]). The evidence of guilt is overwhelming, and there is no significant probabilitythat defendant otherwise would have been acquitted (see People v Saez, 69 NY2d 802,804 [1987]; People v Cartledge, 50AD3d 1555 [2008], lv denied 10 NY3d 957 [2008]; People v Rodriquez, 24 AD3d1321 [2005], lv denied 6 NY3d 817 [2006]). Defendant's contention regarding thecourt's refusal to suppress evidence seized from his house pursuant to a search warrant is mootbecause the People did not seek to introduce any such evidence at trial (see generally People v Wegman, 2AD3d 1333, 1335 [2003], lv denied 2 NY3d 747 [2004]; People v Burnett,306 AD2d 947, 948 [2003]; People v Falcon, 281 AD2d 368, 368-369 [2001], lvdenied 96 NY2d 901 [2001]).
We conclude, however, that the sentence is illegal insofar as the court directed that thesentence imposed for criminal possession of a weapon in the second degree shall runconsecutively to the concurrent sentences imposed for the two counts of murder in the seconddegree (see People v Ramsey, 59AD3d 1046, 1048 [2009], lv denied 12 NY3d 858 [2009]; People v Fuentes, 52 AD3d 1297,1300-1301 [2008], lv denied 11 NY3d 736 [2008]). We therefore modify the judgmentaccordingly. " 'Although this issue was not raised before the [sentencing] court or on appeal, wecannot allow an [illegal] sentence to stand' " (People v Davis, 37 AD3d 1179, 1180 [2007], lv denied 8NY3d 983 [2007]). As relevant here, the sentence is illegal because, "[p]ursuant to Penal Law§ 70.25 (2), '[w]hen more than one sentence of imprisonment is imposed on a person fortwo or more offenses committed through a single act or omission . . . ,' thesentences, with an exception not relevant here, must run concurrently. Based on the evidencepresented at trial, . . . 'the court has no discretion; concurrent sentences aremandated' " (People v Roundtree,75 AD3d 1136, 1138 [2010], lv denied 15 NY3d 855 [2010], quoting People v Hamilton, 4 NY3d 654,658 [2005]; see People v Cromwell,71 AD3d 414, 415 [2010], lv denied 15 NY3d 803 [2010]; People v Mercer, 66 AD3d 1368,1370 [2009], lv denied 13 NY3d 940 [2010]). Here, "[t]here was no evidence of intendeduse of the weapon against another apart from its use in the killing of the murder victim" (People v Boyer, 31 AD3d 1136,1139 [2006], lv denied 7 NY3d 865 [2006], amended on other grounds 87 AD3d1413 [2011]; see People v Wright, 19 NY3d 359, 366-367 [2012]). As modified, the sentence is not unduly harsh or severe.
We have considered defendant's remaining contention and conclude that it is without merit.
All concur except Gorski, J., who is not participating. Present—Scudder, P.J., Smith,Sconiers, Gorski and Martoche, JJ.