| People v Stanley |
| 2013 NY Slip Op 05166 [108 AD3d 1129] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vMarquis Stanley, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered November 24, 2009. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree and reckless endangerment in thefirst degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe facts by reversing that part convicting defendant of reckless endangerment in the firstdegree under count two of the indictment and dismissing that count, and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal possession of a weapon in the second degree (Penal Law §265.03 [3]) and reckless endangerment in the first degree (§ 120.25). Contrary todefendant's contention, the second showup identification procedure was "not sounnecessarily suggestive as to create a substantial likelihood of misidentification"(People v Duuvon, 77 NY2d 541, 545 [1991] [internal quotation marksomitted]). That identification procedure occurred within an hour of the crime and " 'at ornear' " the intersection where defendant was observed shooting a handgun (People v Blunt, 71 AD3d1380, 1381 [2010], quoting Duuvon, 77 NY2d at 544; see People vClark, 262 AD2d 1051, 1051 [1999], lv denied 93 NY2d 1016 [1999]).Moreover, the fact that defendant was placed in handcuffs and positioned betweenofficers on a sidewalk did not render the identification procedure unduly suggestive (see People v Siler, 45 AD3d1403, 1403 [2007], lv denied 10 NY3d 771 [2008]; People v Ponder, 19 AD3d1041, 1043 [2005], lv denied 5 NY3d 809 [2005]; People v Cortez,221 AD2d 255, 256 [1995]). We reject defendant's related contention that the verdictwith respect to the crime of criminal possession of a weapon in the second degree isagainst the weight of the evidence owing to the People's failure to prove beyond areasonable doubt that he was the individual who possessed the handgun. Viewing theevidence in light of the elements of the crime of criminal possession of a weapon in thesecond degree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence with respect to thatcrime (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
We reject defendant's contention that he was deprived of effective assistance ofcounsel because defense counsel failed to request a jury instruction with respect toeyewitness [*2]identification testimony or to call anexpert witness to testify on that subject. We conclude that defendant has notdemonstrated "the absence of strategic or other legitimate explanations for counsel'salleged shortcomings" (People v Benevento, 91 NY2d 708, 712 [1998] [internalquotation marks omitted]). Viewing the evidence, the law and the circumstances of thiscase, in totality and as of the time of the representation, we further conclude thatdefendant received meaningful representation (see People v Baldi, 54 NY2d 137,147 [1981]).
Defendant failed to preserve for our review his contention that he was denied a fairtrial based on prosecutorial misconduct on summation (see People v Young, 100AD3d 1427, 1428 [2012], lv denied 20 NY3d 1105 [2013]; see alsoCPL 470.05 [2]). In any event, "[t]he majority of the comments in question were withinthe broad bounds of rhetorical comment permissible during summations . . ., and they were either a fair response to defense counsel's summation or fair comment onthe evidence . . . Even assuming, arguendo, that some of the prosecutor'scomments were beyond those bounds, we conclude that they were not so egregious as todeprive defendant of a fair trial" (People v McEathron, 86 AD3d 915, 916 [2011], lvdenied 19 NY3d 975 [2012] [internal quotation marks omitted]).
We agree with defendant, however, that the verdict with respect to recklessendangerment in the first degree is against the weight of the evidence. "A person is guiltyof reckless endangerment in the first degree when, under circumstances evincing adepraved indifference to human life, he recklessly engages in conduct [that] creates agrave risk of death to another person" (Penal Law § 120.25). The evidence at trialestablished only that defendant stood on a street corner and fired up to five shots from ahandgun. The People "presented no evidence that any person . . . 'was in ornear the line of fire' " so as to create a grave risk of death to any such person (People v Scott, 70 AD3d978, 979 [2010], lv denied 15 NY3d 778 [2010], lv denied 15 NY3d809 [2010]; see also People vPayne, 71 AD3d 1289, 1291 [2010], lv denied 15 NY3d 777 [2010]; cf. generally People vSummerville, 22 AD3d 692, 692 [2005], lv denied 6 NY3d 759 [2005];see generally People vFeingold, 7 NY3d 288, 294 [2006]; People v Suarez, 6 NY3d 202, 214 [2005]). Consequently,we modify the judgment by reversing that part convicting defendant of recklessendangerment in the first degree and dismissing that count of the indictment. In light ofour determination with respect to that count of the indictment, we need not considerdefendant's remaining contention regarding that count. Finally, the sentence is not undulyharsh or severe. Present—Centra, J.P., Peradotto, Sconiers, Valentino and Whalen,JJ.