| People v Mobley |
| 2014 NY Slip Op 04339 [118 AD3d 1339] |
| June 13, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Charles L. Mobley, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Erin Tubbs of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.),rendered January 21, 2010. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jurytrial of murder in the second degree (Penal Law § 125.25 [3] [felonymurder]) in connection with the shooting death of a nonparticipant in a home invasionburglary by two masked men. We conclude that the verdict, when viewed in light of theelements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]). Even assuming, arguendo, that a different verdict would not have beenunreasonable, we conclude that there is no basis upon which to conclude that the juryfailed to give the evidence the weight it should be accorded (see id.). Theeyewitness to the shooting did not identify defendant and could identify only one of theparticipants by his voice. The eyewitness identified, by his voice, the nephew of anotherwitness who observed him enter the backyard of the victim's home with defendant. Thatwitness testified that she was in the room with her brother, defendant and her nephewwhen they planned to rob a person staying in a house across the street. The witness sawher brother give defendant a gun, and defendant and her nephew then left the house.Through the window, she watched them go to the back of a house where, she laterlearned, one of the residents was fatally shot, and she watched as they ran back to herhouse 10 to 15 minutes later and went to the basement with her brother. The followingday, she observed her brother hand defendant the gun, and he placed it in his pocket.Police witnesses testified that a canine tracker led the police from the victim's house tothe witness's house, where defendant was found hiding in a bed, although the police leftthe house without making any arrests. There is no basis upon which to disturb thecredibility determinations of the jury (see generally id.).
We reject defendant's further contention that Supreme Court failed to provide ameaningful response to a note from the jury during deliberations asking, "Does[defendant] need to be in the house . . . to be part of the felony[?]" Inresponse to the court's statement to the [*2]prosecutorand defense counsel that defendant did not need to be in the house, defense counselstated that the People's theory was that defendant was the second intruder and that "youcan't have it both ways." The court declined to provide a "yes" or "no" answer, andinstead responded to the note by again reading the instructions on felony murder andaccessorial liability. Contrary to defendant's contention, the reiteration of thoseinstructions was appropriate under the circumstances presented here (see People v Santi, 3 NY3d234, 248-249 [2004]), and was a meaningful response to the jury's question (seePeople v Malloy, 55 NY2d 296, 302-304 [1982], cert denied 459 US 847[1982]; see generally People v O'Rama, 78 NY2d 270, 276 [1991]).Present—Scudder, P.J., Centra, Carni, Lindley and DeJoseph, JJ.