| People v Nelson |
| 2015 NY Slip Op 04350 [128 AD3d 1225] |
| May 21, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJonathon C. Nelson, Appellant. |
Donna C. Chin, Ithaca, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (John Thweatt of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Chemung County (Keene,J.), rendered July 8, 2013, upon a verdict convicting defendant of the crimes of attemptedassault in the first degree, criminal use of a firearm in the second degree and criminalpossession of a weapon in the second degree.
After a jury trial, defendant was convicted of the crimes of attempted assault in thefirst degree, criminal use of a firearm in the second degree and criminal possession of aweapon in the second degree resulting from a shooting incident at an apartment complexin November 2012. The victim, who was shot twice, neither identified defendant as theshooter nor testified at the trial. Defendant now appeals.
Defendant contends that the evidence was legally insufficient to support hisconvictions and the verdict was against the weight of the evidence. As to both of thesearguments, we disagree. Rather, viewing the evidence in a light most favorable to thePeople (see People v Reed,22 NY3d 530, 535 [2014]), we find that the evidence was legally sufficient tosupport the jury's verdict on each of the counts. Darlene Scott, the victim's good friend,testified at trial that she drove to the apartment complex to meet the victim and, as shewaited for him in the parking lot, she saw a man with a hooded sweatshirt pulled over hishead walk by her car. She next saw the victim walking towards then past her car beforeshe heard a "thump" at the back of her car. She turned and saw the man in the hoodedsweatshirt, who she could not identify, shooting at the victim as he ran through theparking lot. It was Scott who drove the victim to the hospital. [*2]Jeremy Huston, who lived in the apartment complex,testified that when he heard gun shots, he looked out his back door and saw a manwearing a hooded sweatshirt running towards his building. Huston explained that heproceeded to open his front door and he observed defendant going into his neighbor'sapartment after hearing defendant say something about a shooting. Huston's neighbor,Kevin Horsey, testified that he opened his front door to find defendant, who he had seenbefore because he was an acquaintance of his roommate. Horsey testified that after he letdefendant into the apartment, defendant showed him the gun and asked him "to hold itdown for him." After initially objecting, Horsey agreed to take the gun after defendantbecame more forceful. After defendant left the apartment, Horsey explained that hewrapped the gun in a shirt before stuffing it in a shoe and throwing the shoe into a nearbycemetery. At trial, Horsey identified defendant as the man who gave him the gun.
Huston testified that shortly after seeing defendant enter Horsey's apartment, he sawa pink taxi arrive in the parking lot, a man exit the taxi, and defendant approaching theman while saying something about a shooting before getting in the taxicab. ContessaStewart testified that she was driving the taxi and that she picked defendant up at theapartment complex and drove him to a convenience store, where defendant was arrestedfor his involvement in the shooting at the apartment complex. The jury also heardtestimony from several police officers that a bullet was recovered from the rear tire ofScott's car, that the gun was recovered from the cemetery with two bullets remaining inthe magazine and one in the chamber, and that shell casings found in the parking lot werefrom bullets fired from the gun that was found in the cemetery.
In our view, the foregoing evidence was legally sufficient to allow the jury toconclude that defendant possessed a loaded firearm with intent to use it unlawfullyagainst another person (see Penal Law § 265.03 [1] [b]; People v Hawkins, 110 AD3d1242, 1242-1243 [2013], lv denied 22 NY3d 1041 [2013]), that, "[w]ithintent to cause serious physical injury to another person, he [attempted to] cause[ ] suchinjury to such person . . . by means of a deadly weapon or a dangerousinstrument" (Penal Law § 120.10 [1]; see Penal Law§ 110.00; People vPine, 126 AD3d 1112, 1114 [2015]) and that, during the commission of theattempted assault, he possessed a deadly, loaded weapon, "from which a shot, readilycapable of producing death or other serious injury may be discharged" (Penal Law§ 265.08 [1]; seePeople v Dixon, 62 AD3d 1036, 1038-1040 [2009], lv denied 12 NY3d914 [2009]). Although defendant contends that the People did not submit sufficientevidence that he ever possessed a weapon, we disagree and, viewing the evidence in alight most favorable to the People, find "a valid line of reasoning and permissibleinferences from which a rational jury could have found the elements of the crime[s]proved beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 349 [2007] [internalquotation marks and citations omitted]; see People v Rodwell, 122 AD3d 1065, 1066-1067 [2014];People v Hernandez 89AD3d 1123, 1124-1125 [2011], lv denied 20 NY3d 1099 [2013]; Peoplev Dixon, 62 AD3d at 1038-1040). Further, we recognize that a different verdictwould not have been unreasonable, especially because no person testified that they sawdefendant shoot the victim. Nonetheless, upon consideration of the testimony in a neutrallight and the rational inferences that can be drawn from the evidence, and with deferenceto the jury's credibility determinations, we find the verdict was supported by the weightof the evidence (see People v Danielson, 9 NY3d at 348-350; People v Estella, 107 AD3d1029, 1031 [2013], lv denied 21 NY3d 1042 [2013]; People v McFarland, 106AD3d 1129, 1131 [2013], lv denied 22 NY3d 1140 [2014]; People vHernandez, 89 AD3d at 1125).
We reject defendant's argument that County Court should have determined thatHorsey was an accomplice as a matter of law. According to defendant, because Horseywas an accomplice, his testimony had to be supported by corroborative evidence thatconnected defendant to the crime of possession of a weapon in the second degree. "[T]obe an accomplice [*3]for corroboration purposes, thewitness 'must somehow be criminally implicated and potentially subject to prosecutionfor the conduct or factual transaction related to the crimes for which the defendant is ontrial' " (People vAnderson, 118 AD3d 1138, 1143 [2014], lv denied 24 NY3d 1117[2015], quoting People vMedeiros, 116 AD3d 1096, 1098 [2014], lv denied 24 NY3d 1045[2014]). Here, we agree with County Court that the evidence established that Horsey didnot participate in the crime but, at most, was an accessory after the fact (see People vJones, 73 NY2d 902, 903 [1989]; People v Colbert, 60 AD3d 1209, 1212-1213 [2009]; People v Washington, 50AD3d 1616, 1617 [2008], lv denied 11 NY3d 796 [2008]).
We also reject defendant's argument that County Court should not have allowed thePeople to enter the victim's medical records into evidence. As a general rule, suchevidence may be admissible under the business record exception to the hearsay rule solong as the records "reflect acts, occurrences or events that relate to diagnosis, prognosisor treatment or are otherwise helpful to an understanding of the medical or surgicalaspects of . . . [the particular patient's] hospitalization" (People v Ortega, 15 NY3d610, 617 [2010]; see Peoplev Wright, 81 AD3d 1161, 1164 [2011], lv denied 17 NY3d 803 [2011]).Here, defendant objects to the records to the extent that there are notations indicating thatthe victim was shot (e.g., there was an "unknown shooter") and to the extent that theyinclude information about his family's medical history and his living situation. In ourview, there can be little doubt that the victim's family medical history was relevant todiagnosis and treatment, and that the victim's home situation (e.g., whether he livesalone, how many stairs he must climb) was relevant to discharge planning. Further, wefind that whether the victim's gun shot wound was self-inflicted, accidental or inflictedby a known or unknown person was necessarily relevant to diagnosis, treatment anddischarge planning for the same reasons that a victim's assailant in a domestic violence orchild abuse situation is relevant to diagnosis and treatment (see People v Ortega,15 NY3d at 617-618). We therefore find that County Court did not err when it admittedthe unredacted medical records. Having found that these statements were "germane" totreatment and diagnosis, we further reject defendant's claim that the admission of theevidence violated his constitutional right to confrontation (People v Duhs, 16 NY3d405, 408-409 [2011]). Moreover, the reference to an "unknown shooter" in no wayimplicates defendant.
Finally, we reject defendant's argument that the sentence imposed, an aggregateprison term of 14 years with five years of postrelease supervision, should be reduced asharsh and excessive. Generally, we may reduce a sentence in the interest of justice wherethere are either extraordinary circumstances or County Court abused its discretion (see People v Miller, 113 AD3d935, 936 [2014], lv denied 22 NY3d 1201 [2014]). Considering defendant'slengthy criminal history, including felonies involving the possession of a weapon, wediscern no basis to reduce the sentence imposed here (see People v Larose, 120 AD3d 1442, 1443 [2014], lvdenied 24 NY3d 1045 [2014]).
Lahtinen, J.P., McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.