| People v Sheppard |
| 2013 NY Slip Op 04633 [107 AD3d 1237] |
| June 20, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vTarrant J. Sheppard, Appellant. |
—[*1] Gwen Wilkinson, District Attorney, Ithaca (Andrew M. McElwee of counsel), forrespondent.
Garry, J. Appeals (1) from a judgment of the County Court of Tompkins County(Rowley, J.), rendered May 14, 2008, upon a verdict convicting defendant of the crime ofcriminal possession of a weapon in the third degree, and (2) by permission, from an orderof said court, entered April 20, 2012, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment of conviction, without a hearing.
In November 2006, based upon his alleged role in the October 2003 shooting deathof Enrique Chavez, defendant was charged by indictment with manslaughter in thesecond degree, criminally negligent homicide, criminal possession of a weapon in thethird degree and tampering with physical evidence. Following a jury trial, defendant wasfound guilty only of criminal possession of a weapon in the third degree. After defendantunsuccessfully moved pursuant to CPL 330.30 to set aside the verdict, he was sentencedby County Court as a second felony offender to 3½ to 7 years in prison. Thereafter,he moved pursuant to CPL 440.10 to vacate the judgment of conviction, which motionwas denied by County Court without a hearing. Defendant appeals from both thejudgment of conviction and, by permission of this Court, from the order denying his CPL440.10 motion.
First, defendant contends that the verdict is against the weight of the evidence.Where, [*2]as here, a different verdict would not havebeen unreasonable, this Court must view the evidence in a neutral light and, "like thetrier of fact below, weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony" (People v Romero, 7 NY3d633, 643 [2006] [internal quotation marks and citations omitted]). As defendantadmitted that he had been previously convicted of a crime, the People were required toprove at trial only that defendant possessed a firearm (see Penal Law§§ 265.01 [1]; 265.02 [1]; People v Pinkney, 90 AD3d 1313, 1314 [2011]). DiegoBush testified at trial that, on the night in question, he was at Chavez's apartment whendefendant began to playfully wrestle with Chavez and poked him with a .380 caliberhandgun. Bush then heard a gunshot, saw that Chavez had been wounded and called 911.According to Bush, defendant told him after the shooting that he did not know that thegun was loaded and did not mean to shoot Chavez. When questioned about conflictingstatements that he had made to the police immediately after the incident, Bush explainedthat he had lied about his involvement because he was afraid that the police would notbelieve him given his criminal history. Ismail Abdur-Razzaaq testified that he had givendefendant a .380 caliber handgun, a holster and ammunition the day before the shooting.According to Abdur-Razzaaq, on the night of the shooting, he was at his sister's housewhen defendant arrived there and claimed that the shooting was an accident and then toldthem where he had hidden the gun. Umar Abdur-Razzaaq, Ismail's brother, testified thathe had also been at his sister's house and gave defendant a ride home that night.Although defendant consistently denied any involvement in the incident, the testimony ofCharles Rhody, defendant's roommate, contradicted defendant's claim that he had not leftthe apartment at all on the night of the shooting.
Though defendant now claims that neither Bush nor Ismail Abdur-Razzaaq iscredible since they both have significant criminal histories and both stood to gain asubstantial benefit on unrelated charges in exchange for their cooperation, "these issueswere fully explored during cross-examination and . . . credibility questions[are] within the jury's province to resolve" (People v Hoppe, 96 AD3d 1157, 1159 [2012], lvdenied 19 NY3d 1026 [2012] [internal quotation marks and citations omitted]).Moreover, in addition to the witness testimony, the evidence established that the policerecovered an ammunition magazine and a .380 caliber handgun, which was lateridentified as the gun from which the fatal shot was fired, from a creek embankment nearChavez's apartment. Police also recovered a holster, ammunition and a user's manual fora .380 caliber handgun, as well as personal items of defendant and correspondenceaddressed to him, from a bedroom in Chavez's apartment in which defendant admittedthat he sometimes stayed. Mindful that the jury is free to selectively credit—ordiscount—portions of the witness testimony that it hears, and according theappropriate deference to those credibility determinations, we cannot say that the verdicthere was against the weight of the evidence (see id. at 1159-1160).
Next, defendant contends that County Court erred by summarily deciding his motionpursuant to CPL 440.10 to vacate the judgment of conviction without a hearing.However, a hearing is not required in every instance and here, particularly consideringthe extensive written submissions by the parties, we do not find that County Courtabused its discretion (see Peoplev Samandarov, 13 NY3d 433, 436 [2009]; People v Dozier, 94 AD3d 1226, 1229 [2012], lvdenied 19 NY3d 996 [2012]; People v Snyder, 91 AD3d 1206, 1214 [2012], lvdenied 19 NY3d 968 [2012], cert denied 568 US —, 133 S Ct 791[2012]). As to the merits, defendant contends that the People committed a Bradyviolation by misrepresenting the length of the sentences that the United States Attorney'soffice promised the Abdur-Razzaaq brothers in exchange for their cooperation in the caseagainst defendant as well as a federal drug prosecution. According to [*3]defendant, although the cooperation agreements called for arecommendation by the federal prosecutor that the brothers each receive a sentence of 10years—the statutory minimum for the crimes with which they werecharged—they were released after less than three years, which, defendant argues,indicates that the federal prosecutor made a recommendation for less than 10 years. Evenassuming this to be true, there is no evidence that the District Attorney prosecutingdefendant was involved in that decision or even aware of it at the time of defendant's trial(compare People v Colon,13 NY3d 343, 349 [2009]). Moreover, it is clear that the Abdur-Razzaaq brothersreceived a substantial benefit in exchange for their cooperation in the case againstdefendant considering that they each faced a maximum sentence of life in prison, anddefendant had ample opportunity to cross-examine them on this issue. Under thesecircumstances, there is no "reasonable possibility" that the result at trial would have beendifferent and, therefore, reversal is not required (People v Bond, 95 NY2d 840,843 [2000] [internal quotation marks and citation omitted]; see People v Phillips, 55 AD3d1145, 1149 [2008], lv denied 11 NY3d 899 [2008]).
The People's failure to inform defendant of criminal charges pending against threeprosecution witnesses does not constitute a Rosario violation (see People vHendrix, 235 AD2d 575, 576 [1997]; People v Wolf, 176 AD2d 1070,1071-1072 [1991], lv denied 79 NY2d 1009 [1992]). We further note that two ofthese individuals did not testify at trial (see People v Tucker, 95 AD3d 1437, 1441 [2012], lvdenied 19 NY3d 1105 [2012]), and disclosure regarding the disorderly conductcharge against the third, Bush, was not statutorily required, as the People were unawareof that recent charge at the time of trial (see CPL 240.45 [1] [c]; People v Carter, 50 AD3d1318, 1320-1321 [2008], lv denied 10 NY3d 957 [2008]). Contrary todefendant's contention, it is not reasonable under the circumstances here presented toimpute knowledge of that pending charge to the entire District Attorney's office. In anyevent, even if the failure to disclose was in error, on this record there is no reasonablepossibility that the People's failure to disclose Bush's pending charge contributed to theverdict (see People v Hendrix, 235 AD2d at 576), particularly considering thefact that defendant effectively cross-examined him about his extensive criminal history.
Nor does the People's alleged failure to turn over more than 500 pages of cell phonerecords and accompanying handwritten notes constitute a Rosario orBrady violation. These records did not relate to any witness's testimony at trial(see People v Smith, 221 AD2d 251, 252 [1995], lv denied 87 NY2d1025 [1996]), and the information contained therein has not been shown to be favorableto defendant (see People vFuentes, 12 NY3d 259, 263 [2009]). Further, the failure to turn over the recordsdoes not require reversal as defendant has not established that there is a reasonablepossibility that the disclosure would have resulted in a different outcome at trial (see People v Auleta, 82 AD3d1417, 1420-1421 [2011], lv denied 17 NY3d 813 [2011]).
Next, we find that County Court abused its discretion in allowing Chavez's mother tospeak at the sentencing hearing. There is no victim of the crime upon which defendantwas convicted, as criminal possession of a weapon in the third degree requires only thepossession of a firearm by a person previously convicted of a crime (see PenalLaw §§ 265.01 [1]; 265.02 [1]; compare People v Hemmings, 2NY3d 1, 5 n [2004]). Here, defendant's conviction upon this charge was supported byevidence wholly separate from the circumstances surrounding Chavez's death, as IsmailAbdur-Razzaaq testified that he had provided the handgun to defendant the day prior. Itwas thus error to allow the mother to give a statement in which she described defendantas a "killer" who "got away with murder." Moreover, we find merit in defendant'scontention, though not preserved (see People v Morgan, 27 AD3d 579, 579 [2006], lvdenied 6 NY3d 851[*4][2006]), that despitepromising it would not consider the mother's statement in imposing sentence, CountyCourt may have considered the homicide charges when it sentenced him to the statutorymaximum prison sentence of 3½ to 7 years. As defendant contends, from a reviewof the sentencing transcript, it appears that the court improperly attributed guilt forChavez's death to him. Consequently, in the interest of justice, we vacate the sentenceand remit to County Court for resentencing (see People v Pacquette, 73 AD3d 1088, 1088 [2010],affd on other grounds 17 NY3d 87 [2011]).
In light of the foregoing, defendant's contention that the sentence imposed is harshand excessive is academic. Defendant's challenge to statements made by the prosecutorduring summation is not preserved for our review. To the extent not specificallyaddressed herein, defendant's remaining contentions have been considered and found tobe without merit.
Peters, P.J., Rose and Lahtinen, JJ., concur. Ordered that the judgment is modified,as a matter of discretion in the interest of justice, by vacating the sentence imposed;matter remitted to the County Court of Tompkins County for resentencing; and, as somodified, affirmed. Ordered that the order is affirmed.