| People v Speed |
| 2015 NY Slip Op 09134 [134 AD3d 1235] |
| December 10, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vCornellius Q. Speed, Appellant. |
Randolph V. Kruman, Cortland, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Chemung County(Hayden, J.), rendered April 19, 2013, upon a verdict convicting defendant of the crimesof attempted murder in the second degree, attempted assault in the first degree andcriminal use of a firearm in the first degree.
Defendant and another individual had a verbal confrontation with the victim on aside street in the City of Elmira, Chemung County. The victim started running awaywhen he observed defendant apparently reach for a weapon. Defendant allegedly firedseveral shots at the fleeing victim, hitting him three times causing injury but not death.He was indicted for the crimes of attempted murder in the second degree, attemptedassault in the first degree and criminal use of a firearm in the first degree. A jury foundhim guilty of all three charges and he was sentenced, as a second felony offender, toconcurrent prison terms of 20 years on each of the attempted murder and attemptedassault convictions and 15 years on the criminal use of a firearm conviction, as well asfive years of postrelease supervision. Defendant appeals.
Initially, to the extent that defendant asserts that the evidence was legallyinsufficient, his general motion for a trial order of dismissal failed to preserve this issue(see People v Hawkins, 11NY3d 484, 492 [2008]; People v Parker, 127 AD3d 1425, 1426 [2015]). "However,since defendant also argues that the verdict was against the weight of the evidence,which does not require preservation, we will consider the evidence adduced as to each ofthe elements of the challenged crimes in the context of that review" (People v Race, 78 AD3d1217, [*2]1219 [2010], lv denied 16 NY3d835 [2011] [internal quotation marks and citations omitted]; see People v Loomis, 56 AD3d1046, 1046-1047 [2008]). In considering defendant's weight of the evidenceargument, "we view the evidence in a neutral light, accord deference to the jury'sassessment of credibility and weigh the relative probative force of conflicting testimonyand the relative strength of conflicting inferences that may be drawn from the testimony"(People v Ormsby, 119AD3d 1159, 1160 [2014], lv denied 24 NY3d 963 [2014] [internal quotationmarks and citations omitted]; see People v Romero, 7 NY3d 633, 643-644 [2006]; People v Green, 121 AD3d1294, 1294-1295 [2014], lv denied 25 NY3d 1164 [2015]).
Here, the victim testified about the disagreement that resulted in defendant andanother individual meeting the victim on a street corner, where defendant suggested thatthey move to a side street. A conversation ensued in which defendant eventually madestatements threatening the victim. The victim started to run when he observed defendantreach into a pocket for what he believed could be a weapon. As he ran, he heardnumerous shots and was struck several times, including in the back. Despite being shot,the victim was able to continue running until he reached his nearby residence, where anindividual at the residence summoned an ambulance. The confrontation had occurred infront of a home with a security surveillance system, and a video of the incident, althoughof poor quality, was received; gunshot flashes can be seen coming from the figureidentified as defendant by the victim. The doctor who treated the victim in the emergencyroom described the three gunshot wounds that the victim sustained. There was alsotestimony from an informant who was in jail with defendant as he awaited trial and whoclaimed that defendant indicated to him that he had shot someone in the back. Afterweighing the evidence in the record, while deferring to the jury's credibilitydeterminations, we find that the verdict was not against the weight of the evidence.
The remaining arguments do not require extended discussion. Defendant's contentionthat the surveillance video was improperly admitted into evidence was not preserved forour review (see CPL 470.05 [2]; People v Brown, 23 AD3d 703, 705 [2005], lvdenied 6 NY3d 810 [2006]) and, in any event, did not constitute reversible errorunder the circumstances of this case (see e.g. People v Carter, 131 AD3d 717, 721-722 [2015],lv denied 26 NY3d 1007 [2015]; People v Boyd, 97 AD3d 898, 899 [2012], lvdenied 20 NY3d 1009 [2013]). Although defendant was offered a plea deal of eightyears in prison, there is no evidence indicating that the 20-year sentence he received was"retaliatory or vindictively imposed as a penalty for [his] exercise of his right to a jurytrial" (People v Blond, 96AD3d 1149, 1154 [2012], lv denied 19 NY3d 1101 [2012]) and, in light ofthe nature of the crime and defendant's criminal history, we find neither an abuse ofdiscretion nor extraordinary circumstances warranting a reduction of the sentence (see People v Dale, 115 AD3d1002, 1007 [2014]; Peoplev Daniels, 97 AD3d 845, 849 [2012], lv denied 20 NY3d 931 [2012]; People v Kindred, 60 AD3d1240, 1242 [2009], lv denied 12 NY3d 926 [2009]).
Peters, P.J., Garry and Clark, JJ., concur. Ordered that the judgment is affirmed.