| People v Butler |
| 2017 NY Slip Op 02186 [148 AD3d 1540] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Dashawn A. Butler, Also Known as Dashawn Butler, Also Known asDashawn Allen Butler, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (Shirley A. Gorman of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), renderedDecember 22, 2014. The judgment convicted defendant, upon a jury verdict, of criminal use of afirearm in the second degree, criminal possession of a weapon in the fourth degree and attemptedassault in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by reversing that part convicting defendantof criminal use of a firearm in the second degree and dismissing count one of the indictment andas modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal use of a firearm in the second degree (Penal Law § 265.08 [2]), criminalpossession of a weapon in the fourth degree (§ 265.01 [1]), and attempted assault inthe first degree (§§ 110.00, 120.10 [1]), arising from an incident in whichdefendant pointed a gun at the victim and fired several rounds. Contrary to defendant'scontention, we conclude that the conviction of criminal possession of a weapon in the fourthdegree is supported by legally sufficient evidence that the firearm was operable, and theconviction of attempted assault in the first degree is supported by legally sufficient evidence thatthe firearm was both operable and loaded with live ammunition (see generally People vShaffer, 66 NY2d 663, 664 [1985]). Despite the lack of forensic evidence, "the Peoplesupplied the necessary proof through circumstantial evidence, i.e., eyewitness testimony andsurrounding circumstances" (People vSpears, 125 AD3d 1401, 1402 [2015], lv denied 25 NY3d 1172 [2015] [internalquotation marks omitted]). Furthermore, viewing the evidence in light of the elements of thecrimes as charged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
We reject defendant's contention that he was denied his right to confront one of the witnessesagainst him when County Court received in evidence that witness's grand jury testimony. Adefendant may not assert his or her constitutional right of confrontation to prevent the admissionof grand jury testimony when " 'it has been shown that the defendant procured thewitness's unavailability through violence, threats, or chicanery' " (People v Smart, 23 NY3d 213, 220[2014]; see People v Vernon, 136AD3d 1276, 1278 [2016], lv denied 27 NY3d 1076 [2016]). At a Siroishearing, a police detective testified that the witness told him that defendant had threatened toharm her if she said anything about the shooting. The detective convinced the witness to come tothe courthouse on the day of trial but, upon her arrival, she refused to testify because defendanthad confronted her during the prior weekend and said that he wanted to "beat the shit out of her"for testifying before the grand jury. In addition, a man who identified himself as defendant'scousin told her that "she had snitched" and threatened to kill her. Based on the foregoing, weconclude that the court properly determined that the People established by the requisite clear andconvincing evidence that the witness was unavailable to testify due to defendant's misconduct(see People v Geraci, 85 NY2d 359, 370 [1995]; People v Miller, 61 AD3d 1429, 1429 [2009], lv denied 12NY3d 927 [2009]).
We reject defendant's further contention that the court erred in denying his motion to dismissthe indictment pursuant to CPL 30.30. "[T]he period of delay resulting from the absence orunavailability of the defendant" is not chargeable to the People, and "[a] defendant must beconsidered absent whenever his location is unknown and he is attempting to avoid apprehensionor prosecution, or his location cannot be determined by due diligence" (CPL 30.30 [4] [c] [i])." 'The police are not required to search for a defendant indefinitely, but they mustexhaust all reasonable investigative leads as to his or her whereabouts' " (People v Williams, 137 AD3d1709, 1710 [2016]). At the hearing on defendant's motion, a police sergeant testified that,during the 57-day period before defendant was apprehended, the police conducted streetinvestigations, held regular briefings, shared intelligence, monitored social media accounts thatthe police believed to contain information about defendant, and surveilled residences wheredefendant may have been staying. In light of those efforts to locate defendant, we conclude thatthe court properly excluded that time from the speedy trial calculation (see People v Hawkins, 130 AD3d1298, 1300-1301 [2015], lv denied 26 NY3d 968 [2015]).
Defendant contends that the grand jury proceedings were defective because the prosecutorfailed to disclose evidence favorable to the defense prior to the grand jury proceeding or presentthat evidence to the grand jury. We reject that contention inasmuch as the allegedly favorableevidence was not "entirely exculpatory" (People v Gibson, 260 AD2d 399, 399 [1999],lv denied 93 NY2d 924 [1999]), and the failure to disclose that evidence or present it tothe grand jury "did not result in a needless or unfounded prosecution" (People v Smith,289 AD2d 1056, 1057 [2001], lv denied 98 NY2d 641 [2002] [internal quotation marksomitted]).
Defendant's challenge to the court's Sandoval ruling is not preserved for our reviewinasmuch as defendant did not object to the court's ultimate ruling (see People v Davey, 134 AD3d1448, 1450 [2015]). In any event, the record establishes that the court "weighed appropriateconcerns and limited both the number of convictions and the scope of permissiblecross-examination" (id. at 1451 [internal quotation marks omitted]), and thus weconclude that the court's ruling does not constitute an abuse of discretion.
We agree with defendant, however, that the use or display of the firearm while committingthe class C felony of attempted assault in the first degree cannot serve as the predicate for hisconviction of criminal use of a firearm in the second degree inasmuch as the use or display ofthat same firearm satisfied an element of attempted assault in the first degree (see People vBrown, 67 NY2d 555, 560-561 [1986], cert denied 479 US 1093 [1987]; People v Wegman, 2 AD3d 1333,1335 [2003], lv denied 2 NY3d 747 [2004]). Although defendant failed to preserve thatcontention for our review (see People v Simpson, 292 AD2d 852, 853 [2002], lvdenied 98 NY2d 655 [2002]), we exercise our power to review it as a matter of discretion inthe interest of justice (see CPL 470.15 [6] [a]), and we modify the judgment by reversingthat part convicting him of criminal use of a firearm in the second degree and dismissing thatcount of the indictment. We reject defendant's further contention that the count charging criminalpossession of a weapon in the fourth degree is an inclusory concurrent count of attempted assaultin the first degree (see People vSolomon, 96 AD3d 1396, 1397 [2012]; see generally People v Miller, 168 AD2d642, 642 [1990], lv denied 78 NY2d 956 [1991]).
Finally, the sentence is not unduly harsh and severe. Present—Carni, J.P., Lindley,NeMoyer, Troutman and Scudder, JJ.