| People v Miles |
| 2014 NY Slip Op 05212 [119 AD3d 1077] |
| July 10, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vJalil Miles, Also Known as Jungle, Appellant. |
M. Joe Landry, Schenectady, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (John R. Healy of counsel), forrespondent.
Lahtinen, J.P. Appeal from a judgment of the Supreme Court (Milano, J.), renderedSeptember 19, 2011 in Schenectady County, upon a verdict convicting defendant of thecrime of criminal possession of a weapon in the second degree (two counts).
In March 2010, defendant, Michael Capers, Virgil Terry and codefendant DashaunTerry were allegedly armed with several handguns as they drove along a street in the Cityof Schenectady, Schenectady County en route to a party. They slowed and struck up aconversation with a group of pedestrians. At some point, insults were exchanged,including derogatory comments reportedly directed at Catoria Pittman whose brother,Alphonzo Pittman, was among the many teenage pedestrians in the immediate vicinity.Alphonzo Pittman issued a challenge for a fist fight and the group of four in the vehicleexited to the street as others gathered around. The incident quickly escalated and a seriesof shots were fired, with both Alphonzo Pittman and Virgil Terry sustaining fatal bulletwounds. Defendant and Dashaun Terry were charged together in a multicountindictment, and Capers was separately indicted. Charges against defendant included,among others, murder in the second degree (two counts) and criminal possession of aweapon (six counts). Dashaun Terry accepted a plea deal and testified against defendant.A jury acquitted defendant of some of the charges, but found him guilty of two counts ofcriminal possession of a weapon in the second degree. He was sentenced to twoconcurrent 15-year prison [*2]terms plus five years ofpostrelease supervision. Defendant appeals.
Defendant contends that the convictions were not supported by legally sufficientevidence. We are unpersuaded. To support the two counts of criminal possession of theweapon in the second degree of which defendant was convicted, "the People wererequired to prove that defendant possessed a loaded firearm in a place other than hishome or business (see Penal Law § 265.03 [3]), and that hepossessed a loaded firearm with intent to use it unlawfully against another person(see Penal Law § 265.03 [1] [b])" (People v Hawkins, 110 AD3d1242, 1242 [2013], lv denied 22 NY3d 1041 [2013]). The extensiveevidence at trial included, among other things, Dashaun Terry testifying that he sawdefendant and Capers shooting handguns, with defendant's gun pointed in the directionof Alphonzo Pittman as Capers shot toward the crowd. Catoria Pittman recalled thatdefendant had a gun in his hand, and it looked to her like he was firing it as she observeda jerking-back motion by his hand. Another witness described flashes of light comingfrom the person standing in the location where defendant was standing. Witnesses whowere unable to identify the shooters nonetheless recalled repeated shots being fired, andevidence indicated that only members of defendant's group were armed. Defendant fledbefore police arrived and, later that evening, a witness claimed to have overhearddefendant telling his mother that it was an accident. A person incarcerated withdefendant following his arrest testified that defendant acknowledged that he shot a gunduring the incident.
Many of the witnesses had their credibility challenged to varying degrees oncross-examination, but we accord deference to the jury's resolution of credibility issues(see People v Niver, 41AD3d 961, 963 [2007], lv denied 9 NY3d 924 [2007]; People vLockerby, 178 AD2d 805, 806-807 [1991], lv denied 80 NY2d 834 [1992]).Although no gun was found following the incident, testimony by witnesses regardinggunshots "provides circumstantial evidence that a gun was loaded and operable" (People v Samba, 97 AD3d411, 414 [2012], lv denied 20 NY3d 1065 [2013]) and, in fact, at least onegun from defendant's group was operable as evidenced by the tragic results. There wasample evidence that some of the shots came from defendant's handgun and that heintended to use the gun unlawfully against another (see e.g. People v Vargas, 60 AD3d 1236, 1238 [2009],lv denied 13 NY3d 750 [2009]). It is uncontested that the shootings occurredoutside on a street. Moreover, there was also sufficient evidence that defendant sharedthe intent or purpose of the other shooter from his group (see People v Bush, 75 AD3d917, 918 [2010]), lv denied 15 NY3d 919 [2010]), and the jury couldconvict defendant whether he was a principal or an accomplice (see People v Smith, 89 AD3d1126, 1130 [2011], lv denied 18 NY3d 962 [2012]; see also People v Baugh, 101AD3d 1359, 1362 [2012], lv denied 21 NY3d 911 [2013]; People vWeiner, 226 AD2d 757, 758 [1996]). Viewed in the light most favorable to thePeople (see People v Vargas, 60 AD3d at 1237; People v Berry, 5 AD3d866, 868 [2004], lv denied 3 NY3d 637 [2004]), there was sufficient proofof all of the elements of the two crimes.
Defendant's assertion that Supreme Court erred in failing to instruct the jury on theaccomplice corroboration rule was not preserved for review (see People v Tabb, 12 AD3d951, 953 [2004], lv denied 4 NY3d 768 [2005]). Further, we find no merit indefendant's contention that the testimony of Dashaun Terry was not adequatelycorroborated. New York's accomplice corroboration requirement (see CPL 60.22)"requires only enough nonaccomplice evidence to assure that the accomplice[ ] ha[s]offered credible probative evidence" (People v Breland, 83 NY2d 286, 293[1994]), and "even seemingly insignificant matters may harmonize with the accomplice'snarrative so as to provide the necessary corroboration" (People v Caban, 5 NY3d143, 155 [2005] [internal quotation marks and citations omitted]). Here, in additionto defendant's confessed involvement to another person while in jail awaiting trial,corroborative [*3]evidence also included, among otherthings, nonaccomplice eyewitnesses who placed defendant at the scene, saw him armedwith a handgun and heard gunshots (see generally People v Berry, 78 AD3d 1226, 1227 [2010],lv denied 16 NY3d 828 [2011]; People v Faulkner, 36 AD3d 951, 952 [2007], lvdenied 8 NY3d 922 [2007]).
Defendant states in a pro se argument that, after his trial and sentencing, he learnedof a possible Brady violation by the People. This issue is "based on mattersoutside the record on appeal and thus may properly be raised by way of a motionpursuant to CPL article 440" (People v DeJesus, 110 AD3d 1480, 1482 [2013], lvdenied 22 NY3d 1155 [2014]).
McCarthy, Rose, Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.