| People v Martin |
| 2016 NY Slip Op 01357 [136 AD3d 1218] |
| February 25, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vKolby Martin, Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Rose, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered June22, 2012 in Albany County, upon a verdict convicting defendant of the crimes ofattempted murder in the second degree, criminal use of a firearm in the first degree andcriminal possession of a weapon in the second degree (three counts).
Following a jury trial, defendant was convicted of attempted murder in the seconddegree, criminal use of a firearm in the first degree and criminal possession of a weaponin the second degree (three counts) for his role as the shooter in a drive-by shooting. Hewas sentenced as a second felony offender to an aggregate prison term of 25 years,followed by five years of postrelease supervision. He now appeals.
Supreme Court's Sandoval ruling "appropriately balanced the probative valueof the proof pertaining to defendant's credibility against the risk of unfair prejudice" (People v Portis, 129 AD3d1300, 1303 [2015], lv denied 26 NY3d 1091 [2015] [internal quotationmarks and citation omitted]; see People v Sandoval, 34 NY2d 371, 377 [1974]).When the People sought to use five of defendant's 10 prior convictions to impeach himduring cross-examination, the court precluded inquiry into two of them and limited thescope of inquiry into the remaining three convictions to exclude any mention of theunderlying facts. While two of those three convictions—a 2002 conviction forcriminal sale of a controlled substance in the fifth degree and a 2001 conviction ofattempted robbery in the second degree—were remote in time, "there is no [*2]bright-line rule of exclusion based upon age of conviction"(People v Wilson, 78 AD3d1213, 1216 [2010], lv denied 16 NY3d 747 [2011]; see People vPortis, 129 AD3d at 1303), and the court correctly noted that both convictionsdirectly implicated defendant's willingness to put his own interests above those ofsociety.
Although defendant's challenge to the legal sufficiency of the evidence was notproperly preserved (see People vHawkins, 11 NY3d 484, 492 [2008]; People v Briggs, 129 AD3d 1201, 1202 [2015], lvdenied 26 NY3d 1038 [2015]), we will evaluate the adequacy of the proof at trial aspart of our weight of the evidence review (see People v Danielson, 9 NY3d 342, 349 [2007]; People v Andrews, 127 AD3d1417, 1419 [2015], lv denied 25 NY3d 1159 [2015]). At trial, the Peopleproduced an eyewitness who testified that she saw a vehicle pull up to the curb of a citystreet and then heard a series of gunshots fired at two young men on the sidewalk. As thevictims fled, the eyewitness saw blood on the back of one victim's shirt. A policesergeant, who also heard the initial shots and observed a driver and a passenger in thevehicle, testified that he witnessed an arm emerge from the passenger-side window andfire a handgun at one of the fleeing victims. The vehicle then sped away and a number ofpolice vehicles became involved in an extended high speed chase through city streets,ending in defendant's apprehension.
During the chase, a police detective who had known defendant for over 10 yearsclearly observed and identified him as the passenger in the vehicle. As the detectivepursued the vehicle, he saw it slow down and then speed up again after thepassenger-side door swung open for a moment. The detective returned to that location,where two loaded and operable handguns were recovered. At trial, the People's expertslinked defendant's DNA and a shell casing recovered from the scene to the handguns.Viewing the evidence in a neutral light and according deference to the jury's credibilitydeterminations, we find that the verdict was not against the weight of the evidence (see People v Lanier, 130 AD3d1310, 1311 [2015], lv denied 26 NY3d 1009 [2015]; People v Miller, 118 AD3d1127, 1128-1129 [2014], lv denied 24 NY3d 1086 [2014]; People v Molina, 79 AD3d1371, 1375-1376 [2010], lv denied 16 NY3d 861 [2011]).
In view of defendant's extensive criminal history, his involvement in a shootingrampage on a city street and his participation in a high speed chase endangering the livesof police and the general public, for which he has expressed no remorse, we reject hisclaim that Supreme Court's imposition of the maximum sentence was unduly harsh orexcessive (see People vMathews, 134 AD3d 1248, 1251 [2015]; People v Griffin, 122 AD3d 1068, 1071 [2014], lvdenied 25 NY3d 1164 [2015]).
McCarthy, J.P., Garry and Devine, JJ., concur. Ordered that the judgment isaffirmed.