| People v Valverde |
| 2014 NY Slip Op 08066 [122 AD3d 1074] |
| November 20, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAngel Valverde, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Schenectady County(Hoye, J.), rendered December 15, 2011, upon a verdict convicting defendant of thecrimes of assault in the first degree, criminal possession of a weapon in the seconddegree (two counts) and tampering with physical evidence.
Defendant was charged by indictment with assault in the first degree, two counts ofcriminal possession of a weapon in the second degree and tampering with physicalevidence based on his role in a street fight involving multiple participants during theevening of September 29, 2010 in the City of Schenectady, Schenectady County. ThomasRyan (hereinafter the victim) was shot in the leg during the altercation, sustaining afractured femur. Following a jury trial, defendant was convicted as charged andsentenced to three prison terms of 15 years, with five years of postrelease supervision,and one prison term of 1
To begin, defendant failed to preserve his argument that the verdict is not supportedby legally sufficient evidence since he did not renew the motion to dismiss at the close ofhis proof (see People vKolupa, 13 NY3d 786, 787 [2009]; People v Hines, 97 NY2d 56, 61-62[2001]; compare People vFinch, 23 NY3d 408, 416 [2014]). Nor was his general motion to dismiss theassault count at the close of the People's direct case adequate to preserve said claim (see People v Hawkins, 11NY3d 484, 492 [2008]). We, nonetheless, must determine whether all the elementsof the crimes charged were proven beyond a reasonable doubt in reviewing defendant'sclaim that the verdict was against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]; People v Thomas, 105 AD3d 1068, 1069-1070 [2013],lv denied 21 NY3d 1010 [2013]).
Defendant essentially maintains that this is a case of mistaken identity and that theevidence was insufficient to establish that he was even at the melee, let alone that he wasthe shooter. The event was prompted by an ongoing feud between members of thevictim's family, and the friends and family of his sister's boyfriend, Donald Andrews.Earlier in the day, the victim and Donald Andrews were involved in a physicalaltercation. That evening, Ben Ryan, the victim's brother, and Jonathan Best were sittingon a stoop on Park Avenue when a red sports utility vehicle (hereinafter SUV) passed byseveral times. Donald Andrews' two brothers, Dante Macklin and Travis Andrews(hereinafter Andrews), were in the SUV, along with Andrews' girlfriend, SamanthaBogdanowicz. After receiving a call from his brother, the victim showed up at the sceneabout the same time that the SUV returned. A fight immediately ensued. As the fightingbegan to subside, shots were fired and the victim was wounded.
The People presented the testimony of several participants—the victim and hisbrother, Best, Bogdanowicz, Macklin and Andrews. Importantly, Best testified that hesaw defendant, who was wearing a white shirt and black hat with ear flaps, holding ahandgun at waist level and aiming it towards the victim. When Best ran for cover, heheard three shots. Macklin testified that defendant had the gun at the time the shots werefired. The victim testified that he did not know defendant beforehand, but recognizedhim from Facebook. The victim explained that he was fighting with defendant, when hisbrother and Best interceded. As he stepped away, the victim began to fight with anotherindividual and was shot in the leg. Both the victim and his brother acknowledged thatthey did not see who actually fired the shots. For her part, Bogdanowicz confirmed thatAndrews, Macklin and defendant were all involved in the fight. Andrews, who admittedthat he dropped a knife during the fight, testified that defendant was wearing a brown hatand a white shirt.
According to Bogdanowicz, Macklin and Andrews, they returned with defendant tothe home of Andrews' mother on Foster Avenue after the shooting. Bogdanowicztestified that defendant stated during the ride, "I hit the kid," which she interpreted asmeaning he shot the victim. Andrews also testified that defendant admitted shooting thevictim. Bogdanowicz testified that, once inside the Foster Avenue residence, defendanttook off his shirt, which he used to wrap the gun, and went into the basement or outsidewith Macklin. Macklin confirmed that defendant hid the gun in the basement.Bogdanowicz further testified that, as he was leaving the house, defendant stated wordsto the effect, "I was never here. This never happened."
The People also called the investigating police officers, John Favata and DanielHarrigan, as witnesses. Favata testified that his investigation led to the Foster Avenueresidence, where a search was conducted with the owner's consent. Harrigan found thehandgun wrapped in a white shirt in the basement. Andrews was found hiding in a crawlspace and both Andrews and Macklin were taken into custody. The People finallypresented the testimony of a detective who retrieved various items at the scene of theshooting, including a brown hat and a knife. At the Foster Avenue residence, thedetective took possession of the handgun, the white shirt and a sheath that matched theknife. The gun was loaded with three spent rounds and three live rounds and was foundto be operable. Subsequent DNA testing of blood stains on the white shirt and brown hatwas consistent with defendant's DNA, while testing of the weapon and ammunition wasinconclusive. For his part, defendant presented three alibi witnesses.
On this record, we recognize that a different verdict would not have beenunreasonable. As such, our role is to "weigh conflicting testimony, review any rationalinferences that may be drawn from the evidence and evaluate the strength of suchconclusions" (People v Danielson, 9 NY3d at 348). Defendant contends that thejury failed to accord adequate weight to the testimony of his alibi witnesses and that thetestimony of Bogdanowicz, Macklin and Andrews was patently incredible andformulated to shield Andrews from culpability as the actual shooter. Defendant'sargument ignores the testimony of the victim and his brother placing him at the scene andBest's testimony that defendant had the gun. Moreover, the DNA evidence matcheddefendant with the hat and shirt recovered at the scene and at the Foster Avenueresidence. While there are inconsistencies in the testimony, after viewing and weighingthe evidence in a neutral light and with deference to the jury's credibility assessments, weconclude that the verdict is not contrary to the weight of the evidence (see People vBleakley, 69 NY2d 490, 495 [1987]; People v Perry, 116 AD3d 1253, 1255 [2014]).
Next, defendant contends that County Court's Sandoval ruling was an abuseof discretion. At issue was defendant's plea of guilty in August 2010 to attemptedcriminal possession of a weapon in the second degree, just a month before the currentincident. In our view, the court acted within its discretion in fashioning a compromisethat would allow the People to inquire as to whether defendant had a prior felonyconviction and the date of same, without inquiring as to the details of the conviction (see People v Lloyd, 118 AD3d1117, 1122 [2014]; Peoplev Young, 115 AD3d 1013, 1014 [2014]).
Defendant further contends that County Court erred in not precluding an audiorecording of a jailhouse phone call and related testimony due to untimely disclosure. Therecording is of a call made by a fellow inmate, Justin Broderick, at the request ofdefendant to defendant's girlfriend, Aleeta Corpening. During the call, Broderickprovides instructions, as written by defendant, to have two of defendant's friends contacthis lawyer to advise that they left defendant's brown hat at the scene, heard shots and sawAndrews with the gun and later gave Andrews the shirt to wrap the gun. The friendswere instructed to contact the lawyer that day because defendant had a court appearancethe next day. Notably, the call begins with instructions advising that the call is beingrecorded, and Broderick confirmed that defendant was nearby and providing informationto him throughout the call. We recognize this evidence was not disclosed until the thirdday of trial, but defense counsel, who listened to the recording, raised no objection to thetiming of the disclosure. As such, the challenge has not been preserved for review. In anyevent, defendant has not shown any prejudice resulting from the delay. Defense counseleffectively cross-examined Broderick and presented the testimony of Corpening, whoreceived the call.
We are also satisfied that defendant received the effective assistance of counsel.Defendant's contention to the contrary is based on counsel's agreement to waive aWade hearing in exchange for additional time to consider a plea bargain andcounsel's failure to object to the late disclosure of the audio recording. As discussedabove, several witnesses identified defendant as the perpetrator. Any error in notobjecting to the late disclosure of the recording was of limited import in view of thetotality of this record. Counsel proffered a meaningful mistaken identity defense andactively participated through each phase of the trial. We conclude that defendant receivedmeaningful representation (seePeople v Green, 119 AD3d 23, 31 [2014], lv denied 23 NY3d 1062[2014]; People v Alls, 117AD3d 1190, 1192-1193 [2014]; People v Hughes, 114 AD3d 1021, 1024-1025 [2014],lv denied 23 NY3d 1038 [2014]).
Finally, considering that defendant was awaiting sentencing on the earlier weaponconviction at the time of this altercation, the sentence was not an abuse of discretion andwe do not find extraordinary circumstances warranting any reduction.
Stein, J.P., Garry, Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.