| People v Estella |
| 2013 NY Slip Op 04047 [107 AD3d 1029] |
| June 6, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vMichael Estella, Also Known as Streets, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered May 25, 2010, upon a verdict convicting defendant of the crimesof attempted murder in the second degree, assault in the first degree, attempted assault inthe first degree, assault in the second degree (three counts), criminal possession of aweapon in the second degree, criminal possession of a weapon in the third degree andreckless endangerment in the first degree (six counts).
Following an altercation in a crowded diner in the City of Schenectady,Schenectady County in the early morning hours of August 6, 2006, defendant fired ahandgun at least seven times, shooting his apparent target three times and hitting threeother patrons with the hail of bullets. A 2010 jury trial ensued,[FN1]after which defendant was found guilty of attempted murder in [*2]the second degree, assault in the first degree, attemptedassault in the first degree, assault in the second degree (three counts), criminal possessionof a weapon in the second degree, criminal possession of a weapon in the third degreeand reckless endangerment in the first degree (six counts). He was thereafter sentencedby County Court to an aggregate prison term of 39 years followed by 15 years ofpostrelease supervision. Defendant appeals and we modify.Initially, defendant contends that his convictions—and, in particular, the jury'sfinding that he was the perpetrator of the subject crimes—are against the weight ofthe evidence. To establish its case, the People elicited the testimony of several witnesseswho identified defendant as the shooter. Ishmael Robinson, who was shot in the stomachduring the incident, testified that he was standing approximately three feet away fromdefendant when the shots were fired and that defendant was the shooter. Similarly,Moses Jackson testified that he saw defendant, who was standing by the front door of thediner with a black handgun, fire a shot into the air, after which he heard several moreshots as he scrambled for cover. Notably, the crime laboratory expert who examined theseven expended bullet casings found at the scene testified that the rounds had all beendischarged from the same weapon. Nicole Davis, a patron sitting in a booth just a fewfeet from defendant, also identified him as the shooter. There was testimony that theshooter was the same individual, identified as defendant, who had intervened in anargument between Carvel Griffin—the apparent target of the assault who was shotthree times—and another person moments earlier. In addition, defendant wasidentified as the person wearing a dark shirt and white cap on the diner's surveillancevideotape by several witnesses who knew him well, and the owner of the diner alsoidentified him as the shooter from that videotape.
To rebut this evidence, defendant presented several witnesses who testified that hewas not the assailant. Griffin, who was serving a federal prison sentence at the time oftrial, testified that defendant was not the shooter. Significantly, Griffin also testified thathe believed that being an informant was a bad thing and acknowledged that, whenapproached in jail by an investigator from the District Attorney's office, he reminded theinvestigator, who had known him for 15 years, that he had never before providedinformation. Cherese Snare, another diner patron who was grazed by a bullet, alsotestified that defendant was not the shooter. However, her testimony was plagued withinconsistencies; upon cross-examination, Snare provided conflicting accounts of whethershe had seen a gun, her whereabouts directly following the incident, whether she washigh on drugs the night of the incident and whether prosecutors had asked her to lieabout defendant's involvement. Snare also acknowledged several past instances in whichshe had refused to cooperate with the District Attorney's office.
While many of the witnesses had extensive criminal records and some of theprosecution witnesses had pending charges against them reduced in exchange for theircooperation, those circumstances were fully explored during cross-examination, and thejury chose to believe the testimony of the People's witnesses (see People v Wingo, 103AD3d 1036, 1037 [2013]; People v Jones, 101 AD3d 1241, 1242 [2012]). Thus, eventhough a different verdict would not have been unreasonable, when we view the trialevidence in a neutral light, along with the rational inferences to be drawn therefrom, anddefer to the credibility determinations made by the jury, we find the verdict to be inaccord with the weight of the evidence (see People v Rivera, 101 AD3d 1478, 1479-1481 [2012],lv denied 20 NY3d 1103[*3][2013]; People v Castellano, 100AD3d 1256, 1258 [2012], lv denied 20 NY3d 1096 [2013]).
However, we agree with defendant that his convictions of six counts of recklessendangerment in the first degree must be dismissed as duplicitous. To avoid theprohibition against duplicity, an indictment must provide the accused with notice of thenature of the charges and the time and place of the underlying conduct with sufficientspecificity so as to enable him or her to prepare an adequate defense, assure that the juryhas reached a unanimous verdict on each count and, if convicted, to protect againstsubsequent prosecutions for the same conduct under the bar of double jeopardy (see People v Alonzo, 16 NY3d267, 269 [2011]; People vBauman, 12 NY3d 152, 154-155 [2009]; People v Keindl, 68 NY2d410, 416-417 [1986]).
Here, County Court found that the original indictment, which included seven countsof reckless endangerment, did not provide sufficient information to enable defendant todistinguish each count. Rather than identify each count temporally or by physicalevidence, the People sought to remedy the defect by providing the name of an intendedvictim for each count. However, reckless endangerment is a conduct-specific, rather thana victim-specific, crime (see People v Watson, 299 AD2d 735, 737 [2002], lvdenied 99 NY2d 633 [2003]; People v Stockholm, 279 AD2d 704, 706[2001], lv denied 96 NY2d 807 [2001]). Thus, despite the amendment, theconduct underlying each count of the indictment remained unclear, as none of the sevenshots fired hit any of the individuals named in the indictment.[FN2]As a result, there is simply no way to match each count of the indictment with thespecific underlying conduct of defendant that would insure that the jury had reached aunanimous verdict with regard to each count and, therefore, the reckless endangermentcounts must be dismissed as duplicitous (see People v Black, 65 AD3d 811, 813-814 [2009], lvdenied 13 NY3d 905 [2009]; People v Dalton, 27 AD3d 779, 781 [2006], lvdenied 7 NY3d 754 [2006]).
We reject defendant's contention that County Court erred in permitting the People toquestion Jackson about a prior statement he made to police. While the testimony of a trialwitness may not ordinarily be bolstered by pretrial statements, where that testimony hasbeen either directly or inferentially assailed as a recent fabrication, prior consistentstatements that predate the motive to give false testimony may be introduced forrehabilitation (see People v McDaniel, 81 NY2d 10, 16 [1993]; People v Callicut, 101 AD3d1256, 1262-1263 [2012], lv denied 20 NY3d 1096 [2013]; People vHughes, 287 AD2d 872, 876 [2001], lv denied 97 NY2d 656 [2001]). Here,Jackson testified for the People that he saw defendant, with a pistol in his hands, fire ashot upwards. During cross-examination, defense counsel fully explored two incidentsinvolving fraudulent acts—one in November 2006 and the other in March2007—for which felony charges were brought against Jackson. Defense counselalso questioned Jackson about a letter he had written to the Schenectady County DistrictAttorney in May 2007 seeking consideration in exchange for his cooperation in casesincluding defendant's and the fact that Jackson had, indeed, received favorabledispositions of the charges against him. In addition, counsel questioned Jackson about astatement he made during defendant's first trial that he had "never seen [defendant]actually shoot" during the incident at the diner, creating the inference [*4]that Jackson's favorable plea deals provided the motivationfor him to fabricate his present testimony that he did see defendant fire the handgun.
In response, the People sought to introduce a statement given by Jackson to police inAugust 2006 that he saw defendant fire a handgun during the incident. Because thisstatement predated the charges against Jackson that might have given him reason totestify falsely, Count Court did not err in allowing the People to question Jackson aboutthe statement after issuing a proper limiting instruction (see People v Callicut,101 AD3d at 1263; People vGarrett, 88 AD3d 1253, 1254-1255 [2011], lv denied 18 NY3d 883[2012]).
Nor do we find merit to defendant's pro se contentions, including that he wasdeprived of the effective assistance of counsel. Defendant has failed to show that thealleged shortcomings of counsel were not legitimate strategic decisions (see People v Izzo, 104 AD3d964, 967 [2013]; People vJones, 101 AD3d 1241, 1242-1243 [2012]). Moreover, counsel madeappropriate motions—including one that preserved defendant's argument that thereckless endangerment counts were duplicitous—pursued a credible defense basedon misidentification that was supported by vigorous cross-examination of witnesses, andotherwise provided defendant with meaningful representation (see People v Alnutt, 101 AD3d1461, 1466 [2012]; Peoplev Kindred, 100 AD3d 1038, 1041 [2012], lv denied 21 NY3d 913[2013]).
We are also unpersuaded that defendant's sentences were excessive or that they wereimposed as punishment for exercising his right to a trial. Given the nature of hisoffenses—defendant fired at least seven rounds at close range in a crowdeddiner—and considering that County Court informed him before trial of themaximum potential sentence and that he never took responsibility or showed remorse forthe crime, we discern no abuse of discretion or extraordinary circumstances that wouldwarrant a reduction of his sentence in the interest of justice (see People v Thomas, 105AD3d 1068, 1072 [2013]; People v Molina, 73 AD3d 1292, 1293 [2010], lvdenied 15 NY3d 807 [2010]; People v Brown, 46 AD3d 949, 952 [2007], lvdenied 10 NY3d 808 [2008]).
We have considered defendant's remaining contentions and find them to beunpersuasive.
Peters, P.J., Lahtinen and Garry, JJ., concur. Ordered that the judgment is modified,on the law, by reversing so much thereof as convicted defendant of six counts of recklessendangerment in the first degree under counts 9, 11, 12, 13, 14 and 15 of the indictment;said counts dismissed and sentences imposed thereon vacated; and, as so modified,affirmed.
Footnote 1: Following a jury trial in2008, defendant was convicted of multiple charges arising from the 2006 shooting.However, pursuant to a CPL 330.30 motion by defendant, County Court set aside theverdict finding that juror misconduct may have affected his substantial right to animpartial jury and a fair trial, and this Court affirmed (68 AD3d 1155 [2009]).
Footnote 2: Adding to the confusionwas the fact that in defendant's first trial, County Court dismissed one count of recklessendangerment in the first degree (count 10) at the conclusion of the People's case,concluding that there was no evidence that the alleged "victim" was present in the diner.