| People v Thomas |
| 2013 NY Slip Op 02284 [105 AD3d 1068] |
| April 4, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vKenneth Thomas, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Albany County (Breslin,J.), rendered September 22, 2010, upon a verdict convicting defendant of the crimes ofassault in the first degree, criminal possession of a weapon in the second degree andcriminal possession of a weapon in the third degree.
Defendant's arrest arose from a 2008 shooting outside of a bar in the City of Cohoes,Albany County.[FN*]Defendant was indicted for attempted murder in the second degree, two counts of assaultin the first degree (intentional assault and depraved indifference assault), criminalpossession of a weapon in the second degree and criminal possession of a weapon in thethird degree. At trial, the People offered testimony from the victim, police officers andthree eyewitnesses; the eyewitnesses, defendant and the victim all knew one another. Onstipulation, [*2]County Court received in evidence aredacted letter from defendant to the court that was sent—after his plea and beforesentencing in the prior proceeding—from the county jail in which he admitted tothe shooting but asserted that it was not intentional. The defense called no witnesses. Thecourt granted, in part, defendant's posttrial motion to dismiss (see CPL 290.10)the count of depraved indifference assault in the first degree. The jury acquitted him ofattempted murder, but found him guilty of the remaining counts. Defendant was thensentenced to an aggregate prison term of 22 years plus five years of postreleasesupervision and defendant now appeals.
We affirm. Defendant first asserts that County Court should have granted hisposttrial motion to dismiss all charges because the evidence was not legally sufficient andthe jury's verdict was against the weight of the credible evidence. Notably, defendant'slegal sufficiency arguments with respect to the weapons possession charges are notpreserved (see People v Gray, 86 NY2d 10, 19 [1995]). However, we willnecessarily review the sufficiency of all of the proof adduced at trial in the context ofresolving defendant's claim that the verdict was against the weight of the evidence (see People v Warner, 69 AD3d1052, 1053 n 1 [2010], lv denied 14 NY3d 894 [2010]).
The trial evidence was legally sufficient to demonstrate that defendant committed thecrime of intentional assault in the first degree (see Penal Law § 120.10[1]). Significantly, defendant admitted in his letter to County Court, "I shot one time" and"dropped the gun and ran," albeit claiming he did so "out of fear" and "unintentionally."Moreover, eyewitness testimony, viewed in the light most favorable to the People,demonstrated that defendant intentionally caused serious physical injury to the victim byshooting him with what appeared to be a gun when the two got into a fist fight afterexiting a bar. An eyewitness testified that defendant was holding "an object" when thevictim "got shot and fell backwards," and she then saw defendant run away. She andanother eyewitness testified that they were nearby when they saw defendant lean downand say "[f]. . . this" or "[f]. . . that," and they then saw a flashand the victim stumbled back. A third eyewitness testified that he was also neardefendant and observed him extend his arm out straight, he then heard a pop and saw aflash by defendant's hand. All three eyewitnesses heard the victim say, "I got popped"after he was shot. The victim testified that he had a fist fight with defendant and, whenthe victim turned his back, he heard and felt a shot to his back. The parties stipulated thatthe victim sustained serious physical injuries as a result of a gunshot wound. Thisevidence was legally sufficient to demonstrate that defendant committed the crime ofintentional assault in the first degree (see People v Bleakley, 69 NY2d 490, 495[1987]; People v Rice, 90AD3d 1237, 1237-1238 [2011], lv denied 18 NY3d 961 [2012]).
We now turn to defendant's assertion that his convictions are against the weight ofthe evidence. Here, a different outcome would not have been unreasonable as theeyewitnesses and the victim did not actually see a gun and no gun was ever found (see People v Danielson, 9NY3d 342, 348 [2007]). Nonetheless, "weigh[ing] the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may bedrawn from [all of] the testimony" (People v Sanchez, 75 AD3d 911, 913 [2010], lvdenied 15 NY3d 895 [2010] [internal quotation marks and citations omitted]; seePeople v Bleakley, 69 NY2d at 495), we find that the credible evidence supports theverdict. To the extent that defendant claimed in the letter that he shot the gun"unintentionally" and that he was "not meaning to hurt or kill anyone," the testimonyfrom the eyewitnesses strongly supports the contrary conclusion. Thus, viewing theevidence in a neutral light while according deference to the jury as factfinder, defendant'sconvictions are not against the weight of the evidence.[*3]
We are also not persuaded by defendant's pro seargument that he was deprived of the effective assistance of counsel, given that therecord—when viewed objectively and in its totality—reflects that hereceived meaningful representation (see People v Cummings, 16 NY3d 784, 785 [2011],cert denied 565 US —, 132 S Ct 203 [2011]; People v Benevento,91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 146-147 [1981]). Withrespect to trial strategy, "counsel's efforts should not be second-guessed with the clarityof hindsight to determine how the defense might have been more effective" (People vBenevento, 91 NY2d at 712; see People v Turner, 5 NY3d 476, 480 [2005]). Moreover,defendant bears a "high burden" (People v Hobot, 84 NY2d 1021, 1022 [1995])to "demonstrate the absence of strategic or other legitimate explanations" for counsel'salleged shortcomings (People v Rivera, 71 NY2d 705, 709 [1988]; accord People v Baker, 14NY3d 266, 270-271 [2010]).
Counsel consistently pursued the legitimate strategy of disputing the proof thatdefendant caused the serious physical injury to the victim, he successfully moved todismiss the count of depraved indifference assault and obtained an acquittal on theattempted murder count. Further, defendant has made no showing that there was acolorable basis on which to move to suppress his letter to County Court, given that theletter was not made in response to any police questioning (see People v Caban, 5 NY3d143, 152 [2005]; People vStultz, 2 NY3d 277, 287 [2004]; cf. People v Carnevale, 101 AD3d 1375, 1379-1380[2012]; People v Vigil, 31AD3d 794, 794 [2006], lv denied 7 NY3d 852 [2006]). Counsel's stipulationthat defendant wrote the letter supported the defense theory that it was an accidentalshooting, at most.
Defendant's argument that trial counsel failed to adequately impeach the People'seyewitnesses is dependent upon their statements to the police that are outside the recordand, therefore, this argument "is not generally reviewable" (People v Moore, 97 AD3d850, 851 [2012]). In any event, counsel's decision to forgo questioning theeyewitness about previous statements that they saw defendant holding a gun was alegitimate strategy not to elicit incriminating testimony. Lastly, any incidents ofprosecutorial misconduct during the People's closing argument were not "so substantiallyprejudicial as to deprive defendant of a fair trial" and, therefore, defense counsel's failureto object did not amount to the ineffective assistance of counsel (People v Head, 90 AD3d1157, 1158 [2011]; compare People v Gorghan, 13 AD3d 908, 909-911[2004], lv dismissed 4 NY3d 798 [2005]; People v Russell, 307 AD2d385, 386-387 [2003]).
Finally, defendant argues that his sentence is harsh and excessive and should bereduced because he is remorseful, as evidenced by his letter to County Court, and capableof being rehabilitated. The sentence reflected the seriousness of defendant's conduct inshooting a gun in a crowd. Given defendant's prior criminal history and that thevictim—who was shot in the back—sustained extensive injuries requiringsurgery and protracted hospitalization and that a bullet remains lodged in his spine, weperceive no extraordinary circumstances or abuse of discretion to justify a reduction inthe interest of justice.
Mercure, J.P., McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Previously, this Courtreversed the judgment of conviction in this matter entered upon defendant's plea of guiltyto attempted murder in the second degree due to the failure to advise defendant that hissentence would include a period of postrelease supervision (68 AD3d 1445 [2009]).