| People v Thompkins |
| 2015 NY Slip Op 07999 [133 AD3d 899] |
| November 5, 2015 |
| Appellate Division, Third Department |
[*1](November 5, 2015)
| The People of the State of New York,Respondent, v Lamar A. Thompkins, Appellant. |
Benjamin K. Bergman, Binghamton, for appellant, and appellant pro se.
Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Chemung County (Hayden,J.), rendered August 24, 2012, upon a verdict convicting defendant of the crime ofcriminal possession of a weapon in the second degree (two counts).
Defendant was charged with two counts of criminal possession of a weapon in thesecond degree after an altercation occurred in which two men armed with bricks and aclub confronted a third man who brandished and discharged a pistol, sending the othertwo running. After a jury trial, which focused on the issue of the identification of theshooter, defendant was convicted as charged. This appeal ensued.
We cannot agree with defendant's claim that the jury's verdict was against the weightof the evidence. At trial, the People presented the testimony of four witnesses whoobserved the altercation from different vantage points. The first eyewitness observed theencounter between the three men from his second floor apartment window, where hecaptured a portion of what transpired on video. This witness observed and filmed twomen—one armed with a brick and the other armed with a piece oflumber—advancing on the third man. As all three moved out of the witness's lineof sight, he heard a gunshot and then saw the two formerly armed men run back downthe street in the opposite direction. Moments later, the third man reappeared in thewitness's field of view, at which point he could see that the third man was holding a gun.While the witness was able to give a general description of all three men, he was not ableto identify defendant as the third man. The People also called as witnesses the other twomen involved in [*2]the altercation. They unequivocallyconfirmed that defendant was the third man involved, although they claimed that he hadnot possessed a firearm and they professed not to know who had fired the shot thatcaused them to run away.
The People's fourth eyewitness was inside his nearby home when he heard anescalating argument taking place on the street. When he stepped outside to see what wasgoing on, he got "a good look" at defendant and observed that he was holding a handgun.This witness then watched as two men armed with bricks charged at defendant, whoresponded by brandishing his pistol and firing it. Later that day, a police investigatorshowed the witness a photo array of six color photographs, but he was initially unable toidentify defendant. The investigator then handed him a black and white photocopy of thesame array and, upon observing it, the witness identified defendant, stating that he was80% certain of his choice. At trial, this witness unequivocally identified defendant as theshooter and blamed his earlier lack of complete certainty on the fact that defendantlooked much younger in the picture in the photo array.
In light of the foregoing testimony, a different verdict would not have beenunreasonable. However, any discrepancies between the witnesses' accounts of thealtercation presented questions of credibility for the jury, which it resolved by findingthat defendant had possessed and fired a loaded pistol in the midst of a confrontationwith two others on a city street. According appropriate deference to the jury's credibilityassessments, we do not find the verdict to be against the weight of the evidence (see People v Nelson, 128AD3d 1225, 1227 [2015]; People v Butler, 126 AD3d 1122, 1123 [2015], lvdenied 25 NY3d 1199 [2015]; People v Maschio, 117 AD3d 1234, 1236 [2014]).
Defendant also argues that he was deprived of the effective assistance of counsel,primarily due to his trial counsel's failure to request that County Court specificallyinstruct the jury that it could, but was not required to, apply the "statutory presumption. . . that the element of intent to use [a] firearm unlawfully against anothermay be inferred from . . . possession" of a loaded firearm (People v Johnson, 83 AD3d1130, 1131-1132 [2011], lv denied 17 NY3d 818 [2011]; see People v Galindo, 23NY3d 719, 722-723 [2014]; see also Penal Law § 265.15 [4]).The record reveals, however, that County Court adequately communicated the permissivenature of the inference by reciting the pattern criminal jury instruction nearly verbatim (see CJI2d[NY] Penal Law§ 265.15 [4]; People v Green, 119 AD3d 23, 30 [2014], lv denied23 NY3d 1062 [2014]; People v Wright, 300 AD2d 419, 419 [2002], lvdenied 99 NY2d 621 [2003]; People v Giordano, 296 AD2d 714, 715[2002], lv denied 99 NY2d 582 [2003]). The court then emphasized that thePeople had the burden of proving each element of the charges beyond a reasonabledoubt. Inasmuch as the instructions were not misleading or otherwise improper, defensecounsel was not ineffective for failing to object to them.
Defendant's remaining claims are unpreserved for our review, and we perceive nobasis to exercise our interest of justice jurisdiction (see People v Green, 119AD3d at 30; People vFauntleroy, 108 AD3d 885, 887 [2013], lv denied 21 NY3d 1073[2013]; People v Asai, 66AD3d 1138, 1140 [2009]; see also CPL 470.15 [3] [c]; [6] [a]). Nor do wefind that counsel was ineffective for failing to raise them. Viewing the representation as awhole, defense counsel made appropriate motions and objections—includingrequests for Molineux and Huntley pretrial hearings—and pursueda viable defense strategy focused on inconsistencies in the testimony of the People'switnesses, which he effectively highlighted during his opening statement,cross-examination of witnesses and summation, thereby affording defendant meaningfulrepresentation (see People vChappelle, 126 AD3d 1127, 1129 [2015], lv denied 25 NY3d 1161[2015]; People v Fauntleroy, 108 AD3d at 887; People v Head, 90 AD3d1157, 1159 [2011]).
[*3] McCarthy,J.P., Egan Jr. and Clark, JJ., concur. Ordered that the judgment is affirmed.