| People v Carr |
| 2012 NY Slip Op 06662 [99 AD3d 1173] |
| October 5, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Mychal A.Carr, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered May 20,2009. The judgment convicted defendant, upon a jury verdict, of attempted murder in the firstdegree, reckless endangerment in the first degree and criminal possession of a weapon in thesecond 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];20.00), reckless endangerment in the first degree (§§ 120.25, 20.00) and criminalpossession of a weapon in the second degree (§ 265.03 [3]). Defendant contends that thePeople failed to establish his identity as the shooter and thus that the evidence is legallyinsufficient to support the conviction of attempted murder and reckless endangerment. We rejectthat contention. The evidence, when viewed in the light most favorable to the People (seePeople v Contes, 60 NY2d 620, 621 [1983]), is legally sufficient to establish defendant'sidentity as the shooter (see People vAdams, 96 AD3d 1588, 1589 [2012]). We further conclude that the verdict on thosecounts is not against the weight of the evidence on the issue of identification (see id.;see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The two police officers and thetwo civilian witnesses who observed the drive-by shooting on Cambridge Avenue testifiedunequivocally that the shooter was situated in the front passenger seat of the vehicle. During theshooting, the shooter's hat blew off of his head and landed in the middle of the street, andsubsequent DNA testing matched defendant's DNA to that found on the hat. Defendant was alsothe source of the major DNA profile extracted from the .380 semiautomatic handgun recoveredin the parking lot where defendant was apprehended, and four fired .380 cartridge casesrecovered by the police in the area of Cambridge Avenue exhibited "class characteristics" thatwere consistent with being fired from that gun. In addition, a jailhouse informant testified thatdefendant admitted to the informant that he was the shooter. Although the informant has anextensive criminal history and received a favorable plea deal in exchange for his testimony, wereject defendant's contention that his testimony was incredible as a matter of law (see People v Morgan, 77 AD3d1419, 1420 [2010], lv denied 15 NY3d 922 [2010]; People v Monk, 57 AD3d 1497,1499 [2008], lv denied 12 NY3d 785 [2009]; People v Pace, 305 AD2d 984, 985[2003], lv denied 100 NY2d 585 [2003]). The jury was informed of the nature of theinformant's plea deal as well [*2]as the details of his priorcriminal conduct, including his rape of a six-year-old girl, and we see no basis to disturb itscredibility determination (see Morgan, 77 AD3d at 1420; Pace, 305 AD2d at985).
Defendant further contends that the evidence is legally insufficient to support his convictionof criminal possession of a weapon in the second degree because the .380 semiautomatichandgun was not loaded when defendant was apprehended by the police and the gun wasrecovered. We reject that contention. "[B]ased on the evidence adduced at the trial, a rational jurycould have inferred that, at some point before the defendant's apprehension by the police and theconcomitant recovery of the weapon, he possessed a firearm loaded with operable ammunitionwith the intent to use it unlawfully against another" (People v Bailey, 19 AD3d 431, 432 [2005], lv denied 5NY3d 785 [2005]). The People introduced, inter alia, testimony that the handgun at issue holdsup to six bullets, five in the magazine and one in the chamber. As noted above, the policerecovered four .380 caliber casings on Cambridge Avenue, and a police witness testified thatdefendant fired two shots at his police car while he was pursuing defendant after the drive-byshooting.
We also reject the contention of defendant that County Court erred in refusing to suppressDNA and fingerprint evidence as the fruit of an unlawful arrest. The police observed defendantand two other males in a parking lot around the corner from the abandoned vehicle involved inthe drive-by shooting within a minute after the vehicle was discovered. The three individualsmatched the general description of the perpetrators. As the police approached the three men in amarked patrol vehicle, two of the individuals fled and defendant attempted to evade the police byforcing his way into an apartment building. We conclude that defendant's attempt to evade thepolice and the flight of the other two individuals, coupled with defendant's temporal andgeographic proximity to the abandoned vehicle, provided the police with the requisite reasonablesuspicion that defendant had committed a crime, i.e., that he was one of the occupants of thevehicle involved in the drive-by shooting and high-speed chase (see People v Knight, 94 AD3d1527, 1529 [2012]; People vButler, 81 AD3d 484, 485 [2011], lv denied 16 NY3d 893 [2011]; People v Jackson, 78 AD3d 1685,1685-1686 [2010], lv denied 16 NY3d 743 [2011]). Further, defendant providedinconsistent explanations to the police regarding the reason for his presence in the parking lot,and the female resident who blocked defendant's entrance to the apartment building told thepolice that she did not know defendant. Once the police located the handgun in the parking lotwhere defendant and the two other individuals had been found, the police had probable cause toarrest defendant. We thus conclude that the court properly denied defendant's suppression motion(see Knight, 94 AD3d at 1528; see generally Butler, 81 AD3d at 485).
Contrary to the further contention of defendant, we conclude that the court properly grantedthe People's motion to amend the first count of the indictment to specify Erie County as the situsof the crime (see CPL 200.70; People v Cruz, 61 AD3d 1111, 1112 [2009]; People vDeSanto, 217 AD2d 636, 636 [1995], lv denied 87 NY2d 972 [1996]). Theindictment was amended "during [the] trial" as required by CPL 200.70 (1) (see generallyCPL 260.30; People v Griffin, 9AD3d 841, 843 [2004]), and the amendment did not change the prosecution's theory orprejudice defendant (see Cruz, 61 AD3d at 1112). The caption of the indictment specifiesErie County, the first count of the indictment states that "THE GRAND JURY OF THECOUNTY OF ERIE" accuses defendant of attempted murder in the first degree and theremaining counts of the indictment all include the language "in this County." Further, the bill ofparticulars specifies with respect to count one of the indictment that the alleged crime occurred"in the vicinity of Goodyear Avenue in the City of Buffalo, County of Erie." We thus concludethat the court "providently exercised its discretion in permitting the prosecution to amend [countone of] the indictment to allege the county where the alleged offense occurred" (Matter of Blumen v McGann, 18 AD3d870, 870-871 [2005]; see People v Eaddy, 181 AD2d 946, 947-948 [1992], lvdenied 79 NY2d 1048 [1992]).[*3]
Defendant contends that the grand jury proceedings weredefective because the People failed to present allegedly exculpatory evidence. We reject thatcontention. It is well established that "[t]he People have broad discretion in presenting a case tothe grand jury and need not 'present all of their evidence tending to exculpate the accused' " (People v Radesi, 11 AD3d 1007,1007 [2004], lv denied 3 NY3d 760 [2004], quoting People v Mitchell, 82 NY2d509, 515 [1993]; see People v Morris, 204 AD2d 973, 974 [1994], lv denied 83NY2d 1005 [1994]). Here, the testimony of one of the officers at the felony hearing that anothercodefendant was situated in the front passenger seat of the vehicle involved in the shooting wasnot "entirely exculpatory" (People v Gibson, 260 AD2d 399, 399 [1999], lvdenied 93 NY2d 924 [1999]), and the failure to present such testimony at the grand jury "didnot result in a 'needless or unfounded prosecution' " (People v Smith, 289 AD2d 1056,1057 [2001], lv denied 98 NY2d 641 [2002], quoting People v Valles, 62 NY2d36, 38 [1984]). Thus, the People's failure to present such evidence to the grand jury does notrequire dismissal of the indictment (see Smith, 289 AD2d at 1057; Gibson, 260AD2d at 399; People v Dillard, 214 AD2d 1028, 1028 [1995]).
Defendant failed to preserve for our review his contention that he is entitled to a new trialbased upon the People's delay in turning over prior statements of the jailhouse informant (seePeople v Rodriguez, 293 AD2d 336, 337 [2002], lv denied 98 NY2d 713 [2002];People v Perdomo, 280 AD2d 617, 617 [2001]; People v Brandl, 231 AD2d 895, 895[1996]), and we decline to exercise our power to review that contention as a matter of discretionin the interest of justice (see CPL 470.15 [6] [a]).
Finally, we conclude that the sentence is not unduly harsh or severe.Present—Scudder, P.J., Smith, Centra, Fahey and Peradotto, JJ.