| People v Mazyck |
| 2014 NY Slip Op 04032 [118 AD3d 728] |
| June 4, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Billy Mazyck, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Jobloveand Lori Glachman of counsel), for respondent.
Appeal by the defendant (1) from a judgment of the Supreme Court, Kings County(Chun, J.), rendered March 4, 2009, convicting him of manslaughter in the first degreeand assault in the second degree, upon a jury verdict, and imposing sentence, and (2), bypermission, from so much of an order of the same court dated May 10, 2012, as denied,after a hearing, his motion pursuant to CPL 440.10 to vacate the judgment of convictionrendered March 4, 2009.
Ordered that the judgment and the order are affirmed.
On June 20, 2002, in front of a crowd of people, Bakeem Townsel (hereinafterBakeem) twice beat up the codefendant, Wayne Davidson, for "disrespecting" Bakeems'smother, Audrey Townsel (hereinafter Audrey). Thereafter, Davidson's girlfriend,Francine Garnett, sought help from her nephew Michael Ortiz to get revenge. Ortiz, inturn, rallied his friends, the defendant, Arthur Alston, and David Hardman, and, togetherwith Davidson and Garnett, they devised a plan to shoot Bakeem. That night, thedefendant and his accomplices went to Audrey's apartment in Coney Island, whereBakeem was staying. The men waited in the stairwell while Garnett knocked on the doorand, as planned, the others emerged from the stairwell into the hall once the door wasopened. Seven shots were fired into the apartment, one fatally striking Audrey in theback, and another passing through Bakeem's left knee. The evidence adduced at trialestablished that the bullets fired came from two guns, and that one gun was fired byHardman.
The defendant was convicted of manslaughter in the first degree and assault in thesecond degree under an acting-in-concert theory. He was acquitted, inter alia, of fourcounts of criminal possession of a weapon.
The defendant's challenge to the legal sufficiency of the evidence of manslaughter inthe first degree is unpreserved for appellate review, as defense counsel failed to specify,in his general motion to dismiss the indictment, the argument he raises now (seeCPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]), that the People failedto establish the element of "intent to cause serious physical injury to another person"(Penal Law § 120.05 [1]). In any event, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]),we find that it was [*2]legally sufficient to establish thedefendant's guilt of that crime beyond a reasonable doubt. The testimony of thedefendant's accomplice, Alston, was sufficiently corroborated by the defendant's ownstatements (see People vReome, 15 NY3d 188, 192 [2010]; People v Breland, 83 NY2d 286, 294[1994]; People v Vantassel,95 AD3d 907, 908 [2012]; People v Cortez, 81 AD3d 742, 742-743 [2011]).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence, we nevertheless accord great deference to the jury's opportunity to view thewitnesses, hear the testimony, and observe their demeanor (see People v Mateo, 2NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]; People v Chin, 69 AD3d752, 752-753 [2010]). The criminal and unsavory background of Alston, theprosecution's main and crucial witness, and his having testified pursuant to a cooperationagreement, as well as his misrepresentations to the police and court both before and afterhis plea of guilty, were matters fully explored at trial and merely "raised an issue ofcredibility which the jury resolved in favor of the prosecution" (People v Harris,276 AD2d 562, 562-563 [2000]; see People v Bernard, 100 AD3d 916, 916-917 [2012];People v Chin, 69 AD3d at 752-753; People v Torres, 47 AD3d 851, 852 [2008]; People vSmith, 302 AD2d 615, 616 [2003]), which it was entitled to do. Alston's account ofthe events of June 20, 2002, was internally consistent and in accord with the physicalevidence and testimony of other prosecution witnesses, including Bakeem, DarrellPeterson, and Brian King, as well as the defendant's statements in large part.Furthermore, that the jury acquitted the defendant of the gun possession charges did notrequire them to disregard Alston's entire testimony. Rather, "the jury was free to accept orreject portions of the testimony presented to it" (People v Martinez, 63 AD3d 859, 860 [2009]; seePeople v Negron, 91 NY2d 788, 792 [1998]; People v Gillums, 71 AD3d 784, 785 [2010]).
The defendant's contention that the evidence was legally insufficient to establish thephysical injury element of assault in the second degree is unpreserved for appellatereview and, in any event, without merit. "Physical injury," as used in the Penal Law,means "impairment of physical condition or substantial pain" (Penal Law§ 10.00 [9]). Here, viewing the evidence in the light most favorable to theprosecution, a rational trier of fact could have inferred, based on the nature of the wound,i.e., a bullet through the knee, and testimony that Bakeem appeared to be in pain and thathe was crawling on the floor after being shot, that Bakeem suffered substantial painsufficient to satisfy that prong of "physical injury" (see Penal Law§§ 120.05 [2]; 10.00 [9]; People v Chiddick, 8 NY3d 445 [2007]; People vRojas, 61 NY2d 726 [1984]).
The hearing court did not improvidently exercise its discretion in denying thedefendant's motion to vacate the judgment of conviction (see People v Cain, 96 AD3d1072, 1073 [2012]; Peoplev Malik, 81 AD3d 981 [2011]; People v Robinson, 211 AD2d 733[1995]). To justify vacatur of a judgment of conviction based on newly discoveredevidence pursuant to CPL 440.10 (1) (g), "the evidence must fulfill all the followingrequirements: '1. It must be such as will probably change the result if a new trial isgranted; 2. It must have been discovered since the trial; 3. It must be such as could havenot been discovered before the trial by the exercise of due diligence; 4. It must bematerial to the issue; 5. It must not be cumulative to the former issue; and, 6. It must notbe merely impeaching or contradicting the former evidence' " (People v Deacon, 96 AD3d965, 967 [2012] [internal quotation marks omitted], quoting People vSalemi, 309 NY 208, 216 [1955]; see People v Malik, 81 AD3d at 981-982;People v Tankleff, 49 AD3d160, 179 [2007]). At a hearing pursuant to CPL 440.10, "the defendant has theburden of proving by a preponderance of the evidence every fact essential to support themotion" (CPL 440.30 [6]). " 'Implicit in th[e] ground for vacating a judgment ofconviction is that the newly discovered evidence be admissible' " (People vTankleff, 49 AD3d at 182, quoting 34B NY Jur 2d, Criminal Law: Procedure§ 3388 at 39).
The purportedly new evidence here consisted of statements Alston allegedly made toa fellow inmate in which he admitted to having been the second shooter on June 20,2002. At the hearing on the motion, the inmate and Alston testified for the defendant.Alston denied having made the statements and denied that he was one of theshooters.
Alston's alleged statements constituted recantations of his statements to the DistrictAttorney's office and his testimony at trial. Thus, contrary to the defendant's contention,they were not admissible as prior inconsistent statements. Moreover, as the SupremeCourt determined, the [*3]only other basis under whichAlston's alleged statements could have been admissible was the hearsay exception ofstatement against penal interest. However, "before statements of a nontestifying thirdparty are admissible as a declaration against penal interest, the proponent must satisfy thecourt that four prerequisites are met: (1) the declarant must be unavailable to testify byreason of death, absence from the jurisdiction, or refusal to testify on constitutionalgrounds; (2) the declarant must be aware at the time of its making that the statement wascontrary to his penal interest; (3) the declarant must have competent knowledge of theunderlying facts; and (4) there must be sufficient competent evidence independent of thedeclaration to assure its trustworthiness and reliability" (People v Brensic, 70NY2d 9, 15 [1987]; see Peoplev Deacon, 96 AD3d 965, 968 [2012]). Here, not only was the declarant, Alston,available to testify, but he did actually testify at the trial and at the CPL 440.10 hearingitself. The defendant suggests no other exception to the hearsay rule under which thetestimony at issue would be admissible. Mastro, J.P., Skelos, Cohen and LaSalle, JJ.,concur.