| People v Mathews |
| 2015 NY Slip Op 09140 [134 AD3d 1248] |
| December 10, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Radheya Mathews, Appellant. |
Catherine A. Barber, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered June 17, 2013, upon a verdict convicting defendant of the crimesof attempted murder in the second degree, assault in the first degree and criminalpossession of a weapon in the second degree.
Following a jury trial in 2013, defendant was convicted of attempted murder in thesecond degree, assault in the first degree and criminal possession of a weapon in thesecond degree stemming from an incident on June 14, 2011 at the apartment of ChallanaDobbs, during which defendant shot Riley Ritter (hereinafter the victim) in the chest.Defendant was sentenced as a second felony offender to a prison term of 25 years, withfive years of postrelease supervision. Defendant appeals.
We affirm. We are unpersuaded by defendant's assertions that the verdict was legallyinsufficient and against the weight of the evidence for failing to establish his identity asthe perpetrator. Dobbs testified that she lived in the apartment with her two children,fathered by defendant, and a child (hereinafter the child) from a different relationship.The incident occurred at around 7:00 a.m., while the victim and Dobbs were in bed,when she awakened to find a person standing in the doorway. Although the victim wasunable to identify defendant, Dobbs testified that it was defendant standing in thebedroom. Both the victim and Dobbs testified that defendant angrily questioned why thevictim was in the house when defendant's children were present. Within moments, as thevictim stood by the bed, defendant shot him. By his account, the next thing the victimremembered was waking up in the hospital. Dobbs testified that the victim ran into thekitchen and was pursued by defendant, who proceeded to strike him in the [*2]head with the gun. The child testified that she heard thecommotion, looked out her bedroom doorway and saw defendant chasing the victim intothe kitchen, while striking him with the gun. She testified that defendant motioned forher to "shush" before exiting the apartment. Dobbs called 911, and the police arrived tofind the victim unconscious on the kitchen floor, bleeding from a chest wound. Notably,defendant acknowledged during a subsequent phone call with Dobb's mother that he shotthe victim because he had warned Dobbs not to have other men around his children. Thisdirect testimony and admission was more than sufficient to establish defendant's identityas the shooter. While defendant challenged the credibility of both the victim and Dobbs,based on their criminal records and purported involvement with drugs, the credibility ofthese witnesses was within the province of the jury to assess (see People v Launder, 132AD3d 1151, 1153 [2015]; People v Richards, 124 AD3d 1146, 1147 [2015], lvdenied 25 NY3d 992 [2015]; People v Wingo, 103 AD3d 1036, 1037 [2013], lvdenied 21 NY3d 1021 [2013]).
The remaining elements of each offense were readily established. Having fired a gunat the victim's chest from a short range within the bedroom, the jury could readily inferthat defendant acted with the intent to cause the death of the victim, as required for theattempted murder charge (see Penal Law § 125.25 [1]; People v Holmes, 129 AD3d1692, 1693-1694 [2015], lv denied 26 NY3d 968 [2015]; People v King, 124 AD3d1064, 1065-1066 [2015], lv denied 25 NY3d 1073 [2015]). Similarly, thejury could find that defendant intended to cause serious physical injury, as required forthe assault in the first degree charge (see Penal Law § 10.00 [10];People v Heyliger, 126AD3d 1117, 1117-1119 [2015], lv denied 25 NY3d 1165 [2015]; compare People v Daniels, 97AD3d 845, 847 [2012], lv denied 20 NY3d 931 [2012]; People v Gray, 30 AD3d771, 772-773 [2006], lv denied 7 NY3d 848 [2006]). The physician whoperformed emergency surgery on the victim testified that he had sustained a life threatening injury, satisfying the "seriousphysical injury" element. Finally, the evidence clearly confirmed that defendantpossessed and used an operable gun to shoot the victim, establishing the elementsnecessary for a conviction of criminal possession of a weapon in the second degree(see Penal Law § 265.03 [1] [b]).
County Court did not err in denying defendant's motion for a mistrial. The motionwas prompted when Steven Nelson, the police officer who responded to the scene, wasasked on direct examination whether he knew defendant "by face" and Nelsonresponded, "I recognized his photo when I looked it up." While defendant maintains thatthe response was suggestive of a "mug shot" and thus a prior arrest, County Courtpromptly intervened before any further testimony could be given and offered to provide acurative instruction directing the jury to disregard the comment (see People v Yontz, 116 AD3d1242, 1244 [2014], lv denied 23 NY3d 1026 [2014]). County Court actedwithin its discretion in refusing defendant's request for an alternative instruction thatNelson could have looked up the photograph in a motor vehicle database since there wasno such testimony. As defendant then declined a curative instruction, we find no merit tohis argument that he was deprived of a fair trial due to Nelson's isolated comment(see People v Young, 48 NY2d 995, 996 [1980]; People v Manchester, 123AD3d 1285, 1287-1288 [2014], lv denied 26 NY3d 931 [2015]; People v Brown, 106 AD3d755, 755 [2013], lv denied 22 NY3d 954 [2013]).
County Court did not abuse its discretion in denying defendant's request to adjournthe trial in order to recall Dobbs to the stand to allow further questioning regarding theclothing of the shooter. The application was prompted when defendant's trial counselapparently was provided with the photograph of an individual, obtained from a nearbyschool camera system, depicting a person in dark clothing sitting on a bench around thetime of the incident. When asked for an offer of proof, counsel's stated objective was toask Dobbs whether that person resembled the shooter. As duly noted by County Court,the identification of defendant as the shooter was not based on his clothing, but on thefact that both Dobbs and the child personally knew him. Moreover, Dobbs had alreadytestified that she did not recall what clothing defendant was wearing. As such, weperceive no prejudice to defendant in the denial of his adjournment [*3]request (see People v Peterkin, 81 AD3d 1358, 1360 [2011], lvdenied 17 NY3d 799 [2011]).
Finally, while we recognize the sentence imposed was the maximum (seePenal Law §§ 70.06 [1] [a]; [3] [a]), we cannot say that the sentencewas harsh or excessive. Given defendant's unprovoked, violent conduct and a criminalhistory involving two prior weapons convictions, we perceive no abuse of discretion orextraordinary circumstances warranting a modification of the sentence.
Lahtinen, J.P., McCarthy and Devine, JJ., concur. Ordered that the judgment isaffirmed.