| People v Wells |
| 2016 NY Slip Op 05669 [141 AD3d 1013] |
| July 28, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v James Wells, Also Known as Ho, Also Known as Eightcho,Appellant. |
Matthew C. Hug, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Garry, J. Appeal from a judgment of the Supreme Court (Coccoma, J.), renderedJune 20, 2013 in Schenectady County, upon a verdict convicting defendant of the crimesof murder in the second degree, criminal possession of a weapon in the second degree(two counts), criminal possession of a weapon in the third degree (two counts), recklessendangerment in the first degree, unlawful imprisonment in the first degree, tamperingwith physical evidence and endangering the welfare of a child (three counts).
In June 2011, defendant, then 31 years old, attended a party in the City ofSchenectady, Schenectady County, together with several other adult males. The majorityof the large group of partygoers were teenagers. Upon discovering that car keysbelonging to a vehicle rented by one of defendant's companions had disappeared,defendant and his companions interrupted the party and began to physically search theguests for the missing keys before allowing them to leave. Some of the guests objected.An altercation ensued, in which the 15-year-old victim was shot and killed.
Defendant was arrested and charged with the crimes of murder in the second degree,criminal possession of a weapon in the second degree (two counts), criminal possessionof a weapon in the third degree (two counts), reckless endangerment in the first degree,unlawful imprisonment in the first degree, tampering with physical evidence andendangering the welfare of a child (three counts). Defendant's pretrial omnibus motionsought, as pertinent here, to suppress identification testimony and to sever three counts ofthe indictment. County Court (Drago, J.) denied the motion to sever and, following acombined Wade/Huntley hearing, denied defendant's motion to suppressidentification testimony. Following a jury trial, defendant was convicted as charged.Supreme Court (Coccoma, J.) denied defendant's CPL 330.30 motion to set aside theverdict and sentenced him, as a second felony offender, to an aggregate prison term of30
Initially, we reject defendant's assertion that the charge of reckless endangerment inthe first degree was duplicitous.[FN1] An indictment count is void forduplicity when it charges more than one offense (see CPL 200.30 [1]; People v Alonzo, 16 NY3d267, 269 [2011]; People vWhitehead, 130 AD3d 1142, 1143 [2015], lv denied 26 NY3d 1043[2015]). However, an indictment may charge multiple acts in a single count when theacts constitute a continuing offense and the charged crime, by its nature, may becommitted by multiple acts occurring over a period of time (see People v Keindl,68 NY2d 410, 421-422 [1986]; People v Flanders, 111 AD3d 1263, 1265 [2013],affd 25 NY3d 997 [2015]; see also People v Hernandez, 235 AD2d 367,368 [1997], lv denied 89 NY2d 1012 [1997]).
Relative to this charge, to establish that defendant was guilty of recklessendangerment in the first degree, the People were required to prove that, "undercircumstances evincing a depraved indifference to human life, he recklessly engage[d] inconduct which create[d] a grave risk of death to another person" (Penal Law§ 120.25). The indictment count charged only one act that could have beenfound to create a grave risk of death—the act of firing multiple gunshots at closerange in a crowded stairwell. The other charged acts included interrupting the teenagers'party, bullying and threatening the young guests, accusing them of stealing or hiding themissing car keys, threatening to strip search them and forcing them to submit to physicalsearches, blocking them from leaving, assaulting some of them, fighting with guests onan interior staircase and finally pulling out one or more large-caliber handguns and,without warning, firing gunshots. These acts were part of a continuous course of conductthat led up to the shooting and, taken together with the act of firing the handgun,established the separate element of the crime requiring proof that defendant acted "undercircumstances evincing a depraved indifference to human life" (Penal Law§ 120.25; see People v Flanders, 111 AD3d at 1265). There was nouncertainty as to the conduct that underlay the jury's unanimous verdict (compare People v Estella, 107AD3d 1029, 1031-1032 [2013], lv denied 21 NY3d 1042 [2013]; Peoplev Brammer, 189 AD2d 885, 885-886 [1993], lv denied 81 NY2d 967[1993]), and we find that the count was not duplicitous.
County Court properly denied defendant's motion to sever counts 8, 10 and 11 of theindictment.[FN2]"Offenses are joinable if, among other things, they are based upon different criminal[*2]transactions but defined by the same or similarstatutory provisions, or if proof of either offense would be material and admissible asevidence-in-chief at the trial of the other offense" (People v Rogers, 94 AD3d 1246, 1248 [2012] [citationomitted], lv denied 19 NY3d 977 [2012]; see CPL 200.20 [2] [b], [c]; People v Raucci, 109 AD3d109, 117 [2013], lv denied 22 NY3d 1158 [2014]). Count 8 chargeddefendant with criminal possession of a weapon in the third degree based upon hisalleged possession of firearms during the 15-day period immediately before the shootingat 811 Bridge Street in Schenectady, which was defendant's residence at the time and waslocated across the street from 730 Bridge Street, where the party took place. Counts 10and 11 charged defendant with endangering the welfare of a child at 811 Bridge Streetbetween December 2010 and March 2011 based upon defendant's dangerous activities inthe presence of children who also resided there, including keeping drugs, loadedhandguns and ammunition in a child's residence, using the residence as a base fordrug-dealing operations and displaying one or more loaded guns to a child.
These counts were premised upon the same statutes that formed the basis of counts 4and 9, which charged criminal possession of a weapon in the third degree andendangering the welfare of a child based upon defendant's conduct at the party(see Penal Law §§ 260.10 [1]; 265.02 [1]). When offenses arejoined solely because they are defined by similar statutory provisions, severance may begranted in the interest of justice upon a showing of good cause; however, a court has nodiscretion to do so if other grounds for joinder exist (see CPL 200.20 [3];People v Rogers, 94 AD3d at 1248). Here, County Court found another groundfor joinder, in that proof of the charges that defendant sought to sever was "material andadmissible as [evidence-in-chief] upon [the] trial of the [remaining charges]" (CPL200.20 [2] [b]; see People v Bongarzone, 69 NY2d 892, 895 [1987]; People v Cherry, 46 AD3d1234, 1236 [2007], lv denied 10 NY3d 839 [2008]). The proof supportingcounts 8, 10 and 11 of the indictment included evidence that defendant possessed severalguns during the period shortly before the party—including several firearms thatdefendant allegedly stored at 811 Bridge Street and showed to a child who resided there,a .357 revolver that defendant allegedly possessed and displayed on the night before theshooting occurred, and a .44 revolver that he allegedly purchased on the day of theshooting. This evidence was material and relevant to show defendant's possession of andaccess to the .44 revolver with which he allegedly shot the victim and the .357 revolverthat he was also charged with possessing at the party (see People v Burnell, 89 AD3d 1118, 1121 [2011], lvdenied 18 NY3d 922 [2012]; People v Lee, 80 AD3d 877, 880 [2011], lv denied16 NY3d 833 [2011]; People vPortee, 56 AD3d 947, 950 [2008], lv denied 12 NY3d 820 [2009]; compare People v Myers, 22NY3d 1010, 1011 [2013]). Thus, the court lacked statutory authority to sever counts8, 10 and 11, and defendant's motion was properly denied (see CPL 200.20 [3];People v Cherry, 46 AD3d at 1236).[FN3]
Defendant's pretrial motion to suppress identification testimony was properly denied."While the People have the initial burden of going forward to establish thereasonableness of the police conduct and the lack of any undue suggestiveness in apretrial identification procedure, it is the defendant who bears the ultimate burden ofproving that the procedure was unduly suggestive" (People v Chipp, 75 NY2d327, 335 [1990], cert denied 498 US 833 [1990] [citation [*3]omitted]). Here, the People met their initial burden duringthe three-day combined Wade/Huntley hearing by presenting the testimony ofseven detectives who conducted photographic identification procedures in which 20witnesses were asked to identify various persons of interest in the shooting, includingdefendant. Witnesses were interviewed one at a time in various locations and wereshown several photo arrays, each of which included a photograph of a person of interest.Two of the arrays included defendant's picture as one of a group of six color photographsof the same individuals, with defendant's photograph in different positions in each array.The photographs depicted six informally-clothed males of apparently similar age andrace, with similar features, hairstyles, expressions and facial hair. The detectives testifiedthat witnesses were asked if they recognized anyone and were instructed, among otherthings, to pay no attention to differences in the styles of the photographs or to featuresthat could easily be changed. This testimony describing the fairness of the identificationprocedure was adequate to shift the burden to defendant to establish that the photo arrayswere unduly suggestive.
Defendant was required to show that " 'some characteristic of one picturedraws the viewer's attention in such a way as to indicate that the police have made aparticular selection' " (People v Davis, 18 AD3d 1016, 1018 [2005], lvdenied 5 NY3d 805 [2005], quoting People v Yousef, 8 AD3d 820, 821 [2004], lvdenied 3 NY3d 743 [2004]; accord People v Lee, 30 AD3d 760, 762 [2006], lvdenied 7 NY3d 850 [2006]). The fact that the background of defendant's picture waslighter than the backgrounds of the others—which varied in color anddarkness—did not "create a substantial likelihood that . . . defendantwould be singled out for identification" (People v Chipp, 75 NY2d at 336; see People v Lawal, 73 AD3d1287, 1288 [2010]; People v Brown, 169 AD2d 934, 935 [1991], lvdenied 77 NY2d 958 [1991]; People v Emmons, 123 AD2d 475, 476 [1986],lv denied 69 NY2d 827 [1987]). Contrary to defendant's claim, he was not theonly subject in the arrays who was depicted from the chest up, and the fact that his shirthad a high collar and zipper did not call undue attention to him, especially as his shirtwas the same dark color as the T-shirts worn by all but one of the others (see People vLee, 30 AD3d at 762; People v Sullivan, 300 AD2d 689, 690 [2002], lvdenied 100 NY2d 587 [2003]). In view of the overall strong similarity in the physicalcharacteristics of the subjects depicted in the photographs and the instruction towitnesses to disregard features that could easily be changed, we find that defendant didnot demonstrate a substantial likelihood that his picture would be singled out (see People v Lanier, 130 AD3d1310, 1313 [2015], lv denied 26 NY3d 1009 [2015]; People v Matthews, 101 AD3d1363, 1364-1365 [2012], lv denied 20 NY3d 1101 [2013]).
County Court did not abuse its discretion by denying defendant's request to callwitnesses at the Wade/Huntley hearing. A defendant does not have an absoluteright to call witnesses at such a hearing and may do so "only where the hearing evidenceraises substantial issues as to the constitutionality of the identification procedure, wherethe People's evidence is notably incomplete, or where the defendant otherwise establishesa need for the witness's testimony" (People v Gant, 26 AD3d 516, 517 [2006] [internalquotation marks, ellipses and citations omitted], lv denied 7 NY3d 756 [2006];see generally People v Chipp, 75 NY2d at 337). Here, there was nothingincomplete or constitutionally questionable in the detectives' testimony relative to theidentification procedures. Further, defendant's stated reasons for callingwitnesses—including possible communication among them—were whollybased on speculation (seePeople v White, 79 AD3d 1460, 1461 [2010], lv denied 17 NY3d 803[2011]). There was no evidence that the procedures employed created opportunities forimproper communication among the witnesses, or that any such communicationsoccurred. The witnesses were interviewed one at a time and were instructed not to tellother witnesses whether they had identified anyone, and the use of two arrays withdefendant's photograph in different positions [*4]minimized the possibility of any witness influencinganother (compare People v Ocasio, 134 AD2d 293, 294 [1987]).
We reject defendant's challenge to Supreme Court's Molineux rulings, whichpermitted evidence of defendant's gang membership, prior possession of firearms anddrugs, and threats against potential witnesses. Evidence of prior bad acts or unchargedcrimes may be admitted when it falls within the list of recognized Molineuxexceptions, completes the narrative of the charged crimes, provides necessarybackground information or is otherwise "relevant to some issue other than thedefendant's criminal disposition" and its prejudicial effect is outweighed by its probativevalue (People v Allweiss, 48 NY2d 40, 47 [1979]; see People v Morris, 21 NY3d588, 594 [2013]; People vRivera, 124 AD3d 1070, 1073 [2015], lv denied 26 NY3d 971 [2015]).Here, as previously discussed, evidence of defendant's possession of firearms before theshooting was directly admissible as proof of counts 8, 10 and 11 of the indictment, andwas further admissible as to several of the remaining counts under Molineux inthat it provided background information tending to prove defendant's means of access tothe murder weapon, and his identity as the shooter. Evidence of defendant's drug-dealingactivities was likewise directly relevant to count 11, which charged endangering thewelfare of a child, premised in part upon defendant's drug-dealing activities at 811Bridge Street. It further provided necessary background information explaining hisrelationship with several of the witnesses who testified at trial (see People v Johnson, 106AD3d 1272, 1274 [2013], lv denied 21 NY3d 1043 [2013]).
Testimony that defendant threatened potential witnesses and warned that he hadcaused a witness who "snitch[ed]" on him to be beaten up "was probative because itcould be interpreted to reflect [his] consciousness of guilt" (People v Peele, 73 AD3d1219, 1221 [2010], lv denied 15 NY3d 894 [2010]; see People v DeVivo, 282 AD2d 770, 772 [2001], lv denied 96 NY2d 900 [2001]). Notably,Supreme Court minimized any unfair resulting prejudice by giving an appropriatelimiting instruction. As for evidence that defendant was a gang member, the People didnot allege that the shooting itself was motivated by any gang-related purpose.Nevertheless, evidence that defendant belonged to the Bloods street gang was material,relevant and connected to the crime because it explained the relationship amongdefendant and his adult companions—who were also Bloods—and thereasons for their cooperation in disrupting the party, fighting with the guests, fleeingtogether after the shooting, and later reconvening elsewhere (see People v Viera, 133 AD3d622, 624 [2015], lv denied 26 NY3d 1151 [2016]). Additionally, defendant'sgang membership provided background information explaining the testimony of certainwitnesses that defendant trusted them enough to seek their assistance or confide in thembecause he believed that they were also gang members. Defendant's gang membershipfurther helped to explain the initial reluctance of some of the People's witnesses tocooperate with police and to testify against him. Accordingly, this evidence wasprobative of several relevant and material issues, and Supreme Court did not abuse itsdiscretion in determining that its prejudicial effect was outweighed by its probative value(see People v Williams, 28AD3d 1005, 1008 [2006], lv denied 7 NY3d 819 [2006]).
Next, defendant claims that his convictions for murder in the second degree, recklessendangerment in the first degree and unlawful imprisonment in the first degree are notsupported by legally sufficient evidence and are against the weight of the evidence, inthat the proof did not establish that he shot the victim or exposed anyone to a risk ofserious physical injury. Defendant's legal sufficiency claim is unpreserved for our review,as he did not raise these specific arguments at trial (see People v March, 96 AD3d 1101, 1102 [2012], lvdenied 20 NY3d 1063 [2013]; People v Lozada, 35 AD3d 969, 969-970 [2006], lvdenied 8 NY3d 947 [2007]). "Nevertheless, our weight of the evidence analysisnecessarily involves an evaluation of whether [*5]allelements of the charged crimes were proven beyond a reasonable doubt at trial" (People v Harden, 134 AD3d1160, 1160 [2015] [internal quotation marks and citations omitted], lvdenied — NY3d —, 2016 NY Slip Op 98338(U) [June 7, 2016]; see People v Danielson, 9 NY3d 342, 348-349[2007]).
The credible testimony of the People's witnesses, taken together, established thatdefendant moved to Schenectady in 2010 with three fellow Bloods—the sameindividuals who later accompanied him to the party where the shootingoccurred—to engage in the business of selling drugs on Bridge Street. Defendantresided in his paramour's apartment at 811 Bridge Street, where her children also resided,and brought two of the Bloods members who later attended the party from Brooklyn tostay there. The paramour testified that defendant kept several firearms in her bedroom;one of her children, then 13 years old, testified that defendant showed him ammunitionand three firearms, one of which was a silver and black gun with a small barrel and ablack handle—a description corresponding with the .357 revolver that defendantallegedly possessed during the shooting.
There was testimony from several witnesses who saw defendant with firearms duringthe days immediately before the shooting, including testimony that, on the night beforethe party, defendant was seen at 730 Bridge Street—where a friend of hisresided—with a .357 revolver. That night, defendant also made contact with awitness who testified that, on the day of the party, he helped defendant purchase along-barreled Smith & Wesson .44 revolver. Defendant allegedly took this weaponto 811 Bridge Street, where he and the companions who later attended the party drankliquor and passed the newly purchased weapon around. Defendant loaded the weaponfrom an ammunition box that matched the description of a box that was later found in theparamour's apartment with defendant's fingerprint on it.
Defendant and his companions then headed across the street to the teenagers' party at730 Bridge Street, where they continued to drink and acted as bouncers, frisking some ofthe guests and helping to collect cover charges. A witness testified that he and a friendfound a set of car keys in the apartment during the party, determined that the keysbelonged to a white vehicle parked nearby and left to seek advice on how to steal the caror its contents without being caught. As previously described, this car had been rented byone of defendant's companions, who soon discovered that the keys were missing. Aftermaking this discovery, defendant allegedly left the party briefly—long enough,according to the People, to cross the street, get one or more of the firearms he stored at811 Bridge Street and change his clothing from the white T-shirt he had previously wornto a blue sweater that helped him conceal weapons on his person. One witness whodescribed defendant's change of clothing said that, following his return, defendant had tokeep adjusting his pants because they seemed to be sagging under a weight.
Several witnesses testified that, among other things, defendant ordered the guests tosearch for the keys, issued threats, instructed the guests that no one could leave until theywere searched, and carried out some of the physically intrusive searches on or near astaircase leading down to the exterior door, while his companions and other individualssearched other guests. At some point, defendant and one of his companions allegedlystationed themselves at the foot of the interior stairwell to block the exterior door andprevent guests who had departed from coming back inside, while others carried outsearches near the top of the stairs. When some guests refused to be searched, a brawlbroke out among several of the guests and defendant's companions in the crowdedstairwell. During the ensuing confusion, a witness saw defendant's companion hand a"big" gun with a long barrel to defendant, who was then standing near the foot of thestairs. The companion then moved up the stairs, fighting with a guest, while defendantremained below; meanwhile, the victim, who had joined the struggle, descended thestairs. Defendant and the victim began to fight, and several witnesses saw defendantdraw two revolvers [*6]and fire at least one shot at thevictim. Numerous witnesses heard one shot, followed by several shots in quicksuccession. The victim's body was found at the foot of the stairs, partially blocking theexterior door. Forensic evidence established that he was shot four times with a .44revolver while he was on the stairway by someone standing at or near the bottom of thestairs.
Witnesses outside saw defendant leave immediately after the shooting, closelyfollowed by his companions. One witness said that defendant was holding two large gunsas he left, which he placed in the waist of his pants. Defendant's paramour testified thatshe heard several gunshots from her apartment at 811 Bridge Street. Shortly thereafter,defendant returned alone through a back door, pulled a .44 revolver from his pants,opened its cylinder and told her that he had shot the victim four times. She testified thatshe saw ammunition in two of the weapon's six chambers, while the remainder appeareddark and empty. Defendant then took a bag of belongings and fled, leaving behind itemslater found by police that included drug paraphernalia, clothing, and thepreviously-mentioned box of ammunition bearing his fingerprint. He was arrested amonth later in Brooklyn. Sixteen months after the shooting, rusted .357 and .44 revolverswere found among debris in a nearby backyard, wrapped in a blue sweater that matchedthe description of the one that defendant had changed into just before the shooting. The.44 revolver was a long-barreled Smith & Wesson that contained four spent casingsand two live rounds of the same type of ammunition that killed the victim and was storedin the ammunition box. The .357 revolver was loaded but had not been fired.
Two inmates who encountered defendant in jail after his arrest testified that he madeadmissions related to the shooting. One of these inmates said that defendant admitted thathe had two guns but fired only one, and that he shot the victim several times, using arevolver. Defendant allegedly told another inmate that he "finished" the victim andplaced a box over his head afterward—a box that several witnesses rememberedseeing on or near the victim immediately after the incident.
Defendant took the stand and offered an account of the evening in which headmitted, among other things, that he belonged to the Bloods, moved to Schenectady tosell drugs, possessed the .44 revolver that was later recovered by police, took the .357revolver to the party and participated in searching the guests and fighting with them.However, he denied that he had shot the victim and suggested that one of his companionsmight have done so. Defendant further presented several witnesses whose testimonytended to support his version of events or call into question the credibility of the accountsoffered by the People's witnesses. Had the jury credited this testimony, a different verdictwould not have been unreasonable (see People v Romero, 7 NY3d 633, 643 [2006]). Asdefendant argues, there were contradictions and inconsistencies in the testimony of thePeople's witnesses; many of these witnesses initially declined to cooperate with lawenforcement, made early statements that were inconsistent with their later trial testimony,or testified that they were allowed to plead to reduced charges for unrelated offenses inexchange for their testimony against defendant. However, "these issues were fullyexplored during cross-examination and, in the final analysis, posed credibility questionsfor the jury to resolve" (Peoplev Malak, 117 AD3d 1170, 1174 [2014], lv denied 24 NY3d 1086[2014]; accord People v Rivera, 124 AD3d at 1074; see People v Desmond, 118AD3d 1131, 1133 [2014], lv denied 24 NY3d 1002 [2014]). Deferring tothese credibility determinations and viewing the evidence in a neutral light (seePeople v Bleakley, 69 NY2d 490, 495 [1987]), we cannot say that the jury failed toaccord the evidence its proper weight.
We reject defendant's assertion that he was deprived of a fair trial by the admissionof prejudicial and irrelevant testimony from the victim's mother and his basketball coachon the first day of the trial. Supreme Court did not err in admitting this testimony to thelimited extent that it served to explain how the victim—who had been at abasketball tournament in New York City earlier that day—came to be present atthe party and to describe his demeanor and physical condition just before the event(see People v White, 79 AD3d at 1463). Both witnesses strayed beyond thispurpose by offering emotional comments and remarks on such irrelevant [*7]subjects as the victim's personality; defendant objected tothis testimony, and the court promptly sustained the objections and attempted tominimize the prejudicial impact by instructing the jury to disregard some of the remarks(see id.). In view of the brevity of the challenged testimony and theoverwhelming other evidence of defendant's guilt presented during the seven-week trial,we find that any error was harmless, as there is no "significant probability" that defendantwould have been acquitted if the testimony had not been admitted (People vCrimmins, 36 NY2d 230, 242 [1975]; accord People v Smith, 217 AD2d221, 238-239 [1995], lv denied 87 NY2d 977 [1996]).
Finally, in view of the heinous nature of defendant's crimes, his lack of remorse andhis extensive prior history of crimes involving firearms and violence, we find no abuse ofdiscretion or extraordinary circumstances that warrant modification of his sentence in theinterest of justice (see People vMartin, 136 AD3d 1218, 1220 [2016]; People v Rollins, 51 AD3d 1279, 1282-1283 [2008], lvdenied 11 NY3d 930 [2009]).
Egan Jr., Lynch, Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Contrary to the People'sargument, defendant properly preserved this claim by raising it during the trial; he wasnot required to raise it in a pretrial motion (see CPL 470.05; compare People v Allen, 24NY3d 441, 449-450 [2014]; People v Simmons, 115 AD3d 1018, 1018-1019 [2014]; People v Hayes, 104 AD3d1050, 1053 [2013], lv denied 22 NY3d 1041 [2013]).
Footnote 2:We reject the People'sassertion that this claim was unpreserved, as defendant moved to sever the challengedcounts in his pretrial omnibus motion (see CPL 470.05 [2]; compare People vDe Vivo, 282 AD2d 770, 771 [2001], lv denied 96 NY2d 900 [2001];People v Merritt, 265 AD2d 733, 733 [1999], lv denied 94 NY2d 826[1999]).
Footnote 3:County Court furtherfound that, even if joinder had been based solely upon CPL 200.20 (2) (c) so that adiscretionary severance was available, defendant did not make the showing of goodcause required by CPL 200.20 (3).