| People v Dubarry |
| 2013 NY Slip Op 04354 [107 AD3d 822] |
| June 12, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Darius Dubarry, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and ThomasM. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Firetog, J.), rendered July 16, 2009, convicting him of murder in the second degree (twocounts), attempted murder in the second degree, and criminal possession of a weapon inthe second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant failed to preserve for appellate review his contentions that the Peoplefailed to disprove his defense of justification beyond a reasonable doubt, and that theevidence was legally insufficient to support his convictions of murder in the seconddegree (two counts) and attempted murder in the second degree (see CPL 470.05[2]; People v Hawkins, 11NY3d 484, 492 [2008]). In any event, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]),we find that it was legally sufficient to disprove the defense of justification and toestablish the defendant's guilt as to each count of murder in the second degree andattempted murder in the second degree. Further, the defendant's guilt of criminalpossession of a weapon in the second degree was established by legally sufficientevidence. Moreover, in fulfilling our responsibility to conduct an independent review ofthe weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
Contrary to the defendant's contention, the Supreme Court correctly admitted thegrand jury testimony of an unavailable witness. The People established by clear andconvincing evidence that the witness's unavailability was procured by misconduct on thepart of the defendant (see People v Geraci, 85 NY2d 359, 365-366 [1995]; People v Roacher, 39 AD3d569 [2007]).
The defendant, relying on People v Molina (79 AD3d 1371 [2010]), contends that thesubmission of the counts of intentional murder (and attempted murder) and depravedindifference [*2]murder to the jury in the conjunctive,rather than in the alternative, violated his right to due process. However, the defendant'scontention is without merit. "Where, as here, more than one potential victim was presentat the shooting, a defendant may be convicted of both counts because he or she may havepossessed different states of mind with regard to different potential victims" (People v Page, 63 AD3d506, 507-508 [2009]; seePeople v Henderson, 78 AD3d 1506, 1507 [2010]; People v Monserate,256 AD2d 15, 15-16 [1998]; see also People v Douglas, 73 AD3d 30, 33-34 [2010] ["adefendant may act with a specific intent directed at one person, while at the same timebeing reckless with respect to a different person"]; People v Atkinson, 21 AD3d 145, 150 n [2005]). To theextent that the Appellate Division, Third Department, held differently in Molina,we disagree and decline to follow that holding.
Upon viewing the record as a whole, we conclude that the defendant was not deniedthe effective assistance of counsel under the federal and state constitutional standards(see Strickland v Washington, 466 US 668 [1984]; People v Benevento,91 NY2d 708 [1998]).
The defendant's remaining contention, raised in his pro se supplemental brief, isunpreserved for appellate review and, in any event, without merit. Skelos, J.P.,Angiolillo, Dickerson and Roman, JJ., concur.