| People v Harwood |
| 2016 NY Slip Op 03769 [139 AD3d 1186] |
| May 12, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJoshua Harwood, Appellant. |
Adam G. Parisi, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Schenectady County(Hoye, J.), rendered July 24, 2013, upon a verdict convicting defendant of the crimes ofattempted murder in the second degree, attempted assault in the first degree, criminalpossession of a weapon in the second degree (two counts) and reckless endangerment inthe first degree.
Defendant was charged in a five-count indictment with various crimes stemmingfrom his alleged involvement in a shooting. Following a jury trial, defendant wasconvicted of attempted murder in the second degree, attempted assault in the first degree,two counts of criminal possession of a weapon in the second degree and recklessendangerment in the first degree. Defendant was sentenced, as a second felony offender,to an aggregate prison term of 20 years to be followed by five years of postreleasesupervision. Defendant appeals, and we affirm.
We reject defendant's contention that the verdict was either based on legallyinsufficient evidence or that it was against the weight of the evidence. Guilt of attemptedmurder in the second degree requires proof "that defendant, acting with intent to causethe death of another, engaged in conduct which tended to effect the commission of thatcrime" (People vGreenfield, 112 AD3d 1226, 1226 [2013], lv denied 23 NY3d 1037[2014]; see Penal Law §§ 110.00, 125.25 [1]). In regard to thecharge of attempted assault in the first degree, the People had to prove that, "[w]ith intentto cause serious physical injury to another person," defendant attempted to cause "suchinjury to such person or to a third person by means of a deadly weapon or a dangerous[*2]instrument" (Penal Law § 120.10 [1];see Penal Law § 110.00; People v Lanier, 130 AD3d 1310, 1311 [2015], lvdenied 26 NY3d 1009 [2015]). One count of criminal possession of a weapon in thesecond degree required proof that defendant intended to use a loaded firearm againstanother person, while the other count required defendant to possess a loaded firearmoutside of his home or business (see Penal Law § 265.03 [1] [b];[3]; People v Capers, 129AD3d 1313, 1314 [2015]). Finally, "[a] person is guilty of reckless endangerment inthe first degree when, 'under circumstances evincing a depraved indifference to humanlife, he [or she] recklessly engages in conduct which creates a grave risk of death toanother person' " (People v Heesh, 94 AD3d 1159, 1161 [2012], lvdenied 19 NY3d 961 [2012], quoting Penal Law § 120.25).
At trial, proof was introduced that defendant, in a phone call shortly before theshooting, had threatened to kill his ex-girlfriend, who lived on the street where theshooting occurred. Further proof was introduced suggesting that defendant knew whatstreet the ex-girlfriend lived on, but not, perhaps, the exact residence. Evidence related toa GPS tracker established that, at the time of the shooting, a vehicle that defendant drovewas stopped in close approximation to the scene of the shooting. Moreover, evidenceplaced defendant in that car in the immediate aftermath of the shooting. In addition,ballistic evidence was consistent with certain types of firearms having been used in theshooting, and other evidence tended to suggest that defendant had recently stolenmatching firearms. The testimony of defendant's niece and sister established thatdefendant had left their residence shortly before the shooting and returned shortly afterthe shooting. The ex-girlfriend testified that, after hearing the gunshots near herresidence, she saw defendant running away from the street where the shooting hadoccurred. Defendant's sister testified that when defendant returned to their residence, heplaced his clothes in the wash, began to wash himself with bleach substitute andexplained that he was taking these actions in order to remove gunshot residue. Finally,proof was introduced from which a reasonable inference could be drawn that it wouldhave been readily apparent to a shooter that the residence into which shots were fired wasoccupied by people.
Given the aforementioned proof, the evidence was legally sufficient to support thejury's verdict (see People vMiller, 118 AD3d 1127, 1129 [2014], lv denied 24 NY3d 1086 [2014]).Further, all of the witness credibility issues that defendant now raises were directlybefore the jury. Given its opportunity to view the witnesses' testimony, we defer to thejury's credibility assessments. Accordingly, we find that the verdict was not against theweight of the evidence (seePeople v Speed, 134 AD3d 1235, 1236 [2015]; People v Lanier, 130AD3d at 1311).
Finally, we reject defendant's contention that County Court abused its discretion byallowing the introduction of evidence suggesting that defendant had committeduncharged burglaries. Defendant's confession indicating his involvement in thoseburglaries, as well as evidence found in his possession that matched certain items thathad been reported stolen, was compelling proof that defendant had in fact committedsuch uncharged crime. In addition, ballistic evidence tended to suggest that weaponsused in the shooting matched the types of weapons stolen in the aforementionedburglaries and, therefore, the burglary evidence tended to establish defendant's identity asa person involved in the shooting. Accordingly, the court's conclusion that this evidencewas admissible because it fell within the identity exception of Molineux and thatits probative value outweighed its prejudicial effect was not an abuse of discretion (see People v Arafet, 54 AD3d517, 521 [2008], affd 13 NY3d 460 [2009]; People v Brown, 13 AD3d145, 146 [2004], lv denied 4 NY3d 828 [2005]). Defendant's remainingcontentions are without merit.
Lahtinen, J.P., Garry, Rose and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.