| People v Evans |
| 2015 NY Slip Op 07400 [132 AD3d 1398] |
| October 9, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vSaquan Evans, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered May 15, 2012. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree and criminal possession of a weapon in the seconddegree.
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 [1]) and criminalpossession of a weapon in the second degree (§ 265.03 [3]), charges thatarose from the shooting death of a 19-month-old boy, an innocent bystander caught in themidst of gang-related violence. Viewing the evidence in light of the elements of thecrimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wereject defendant's contention that the verdict is contrary to the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Even assuming,arguendo, that a different verdict would not have been unreasonable, "the jury was in thebest position to assess the credibility of the witnesses and, on this record, it cannot besaid that the jury failed to give the evidence the weight it should be accorded" (People v Orta, 12 AD3d1147, 1147 [2004], lv denied 4 NY3d 801 [2005]; see People v Kalinowski, 118AD3d 1434, 1436 [2014], lv denied 23 NY3d 1064 [2014]). We note thatdefendant was identified at trial as the shooter by a fellow gang member, and that datafrom his GPS ankle bracelet that he wore while on parole placed him at the scene of theshooting at the approximate time of the shooting. The GPS data also showed that, afterthe shooting, defendant went to his grandfather's house, where a revolver was found bythe police that was consistent with the weapon used to fire the bullet that killed thevictim.
We reject defendant's further contention that Supreme Court erred in imposingconsecutive sentences. The court sentenced defendant to an indeterminate term of 25years to life for the murder, and a consecutive determinate term of 15 years, plus fiveyears of postrelease supervision, for the weapon possession. Defendant was charged with"simple" weapon possession (Penal Law § 265.03 [3]) and, when adefendant is so charged, "[s]o long as [the] defendant knowingly unlawfully possesses aloaded firearm before forming the intent to cause a crime with that weapon, thepossessory crime has already been completed, and consecutive sentencing is permissible"(People v Brown, 21 NY3d739, 751 [2013]). Contrary to defendant's contention, the evidence was legallysufficient to establish that he possessed the murder weapon in the car on the way to theshooting, and thus "there was a completed possession, within the meaning of [section265.03 (3)], before the shooting took place" (People v Rodriguez, 118 AD3d 451, 452 [2014], lvdenied 24 NY3d 964 [2014]; see People v Mitchell, 118 AD3d 1417, 1418-1419 [2014],lv denied 24 NY3d 963 [2014]).
Defendant failed to preserve his contentions concerning alleged prosecutorialmisconduct, and we decline to exercise our power to reach them as a matter of discretionin the interest of justice (see CPL 470.15 [6] [a]; People v West, 129 AD3d1629, 1630 [2015]). We conclude that [*2]defensecounsel's failure to preserve those contentions did not deprive defendant of effectiveassistance of counsel (seePeople v Koonce, 111 AD3d 1277, 1279 [2013]; see generally People vBaldi, 54 NY2d 137, 147 [1981]).
Finally, although defendant contends that he was illegally arrested without a warrantin violation of Payton v New York (445 US 573 [1980]), the evidence establishesthat defendant was arrested in the threshold of his apartment, and thus "defendant's arrestdid not implicate Payton rights" (People v Reynoso, 309 AD2d 769, 770[2003], affd 2 NY3d 820 [2004]; see People v Correa, 55 AD3d 1380, 1380 [2008], lvdenied 11 NY3d 924 [2009]). Present—Scudder, P.J., Centra, Peradotto,Lindley and Valentino, JJ.