| People v McCauley |
| 2018 NY Slip Op 04598 [162 AD3d 1307] |
| June 21, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Andre McCauley, Appellant. |
Paul J. Connolly, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
McCarthy, J.P. Appeal from a judgment of the Supreme Court (McDonough, J.), renderedJune 5, 2015 in Albany County, upon a verdict convicting defendant of the crime of attemptedassault in the first degree.
Defendant was in an altercation with the victim, during which, it is alleged, defendant shot atthe victim and a bullet grazed his head. As a result of this incident, defendant was charged in anindictment with attempted murder in the second degree and attempted assault in the first degree.Following a trial, the jury found defendant guilty of attempted assault in the first degree.Supreme Court sentenced defendant to 12 years in prison, followed by five years of postreleasesupervision. Defendant appeals.
The verdict is not against the weight of the evidence. Where an acquittal would not havebeen unreasonable, this Court must view the evidence in a neutral light, give deference to thejury's credibility determinations and "weigh the relative probative force of conflicting testimonyand the relative strength of the conflicting inferences that may be drawn from the testimony"(People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and citationomitted]; see People v Johnson, 91AD3d 1194, 1196 [2012], lv denied 18 NY3d 995 [2012]). In his videotapedinterrogation, defendant admitted that he had gone to the victim's garage to fight, was presentthere with the victim and the victim's friend and engaged in an altercation with the victim.Defendant denied having or shooting a gun, and asserted that he injured the victim with anice-pick type tool that the victim first brandished. The indictment specifically alleged thatdefendant shot the victim with a gun. Defendant now argues that the People failed to prove [*2]that the victim was shot, which is required to establish the elementof attempting to cause serious physical injury "by means of a deadly weapon," as alleged (PenalLaw § 120.10 [1]).
From the garage where the incident occurred, police recovered a shell casing that had beenfired. In a 911 call, the victim's friend stated that there was a guy with a gun, who he described asa black male with an orange sweater. Defendant admitted that he was wearing an orange hoodedsweatshirt when he went to the garage. The victim's friend also stated on the 911 call that theman was inside, the man had just been right in front of him with a gun, and an ambulance wasneeded because the man "possibly shot my friend." Blood on defendant's sneakers was a match tothe victim's DNA.
An emergency room doctor, who had previously treated approximately three dozen gunshotwounds, testified that he treated the victim on the date of the incident. Although the doctortestified that the wound on the side of the victim's head appeared consistent with a gunshotwound, on cross-examination he acknowledged that it was possibly due to trauma sufferedduring a physical altercation. However, he explained that the injury appeared consistent with abullet graze due to the particularly crisp edges and shallow linear laceration, and because thewound lacked jagged edges, skin flaps or hematoma generally associated with blunt trauma.Notably, the victim told the doctor that he had been shot. Despite the absence of testimony fromthe victim and his friend, the record evidence established that defendant shot the victim. Whenthe evidence is viewed in a neutral light, the verdict is not against the weight of that evidence (see People v Harwood, 139 AD3d1186, 1188 [2016], lv denied 28 NY3d 1028 [2016]; People v Pine, 126 AD3d 1112,1115-1116 [2015], lv denied 27 NY3d 1004 [2016]).
Supreme Court properly admitted the 911 call into evidence because the statementscontained therein constituted excited utterances. Despite being hearsay, "[a]n out-of-courtstatement is properly admissible under the excited utterance exception when made under thestress of excitement caused by an external event, and not the product of studied reflection andpossible fabrication" (People vJohnson, 1 NY3d 302, 306 [2003]; accord People v Haskins, 121 AD3d 1181, 1183 [2014], lvdenied 24 NY3d 1120 [2015]; see People v Edwards, 47 NY2d 493, 497 [1979])."Underlying this exception is the assumption that a person under the influence of the excitementprecipitated by an external startling event will lack the reflective capacity essential for fabricationand, accordingly, any utterance he [or she] makes will be spontaneous and trustworthy"(People v Edwards, 47 NY2d at 497; accord People v Johnson, 1 NY3d at306).
On the 911 call, the victim's friend stated that a man had a gun and had "possibly shot [his]friend." A shooting generally constitutes a startling event (see e.g. People v Brown, 70NY2d 513, 520 [1987]; People vChin, 148 AD3d 925, 925 [2017], lv denied 29 NY3d 1124 [2017]; People v Garrison, 39 AD3d 1138,1139-1140 [2007], lv denied 9 NY3d 844 [2007]). The caller was uncertain whether theman (i.e., defendant) had left the scene, implying that the call was relatively contemporaneous tothe incident. Based on police officer testimony, the time of the call and the time on a videorecording showing defendant leaving the scene, it can be inferred that the victim's friend called911 shortly after the incident. The caller's tone, words and manner of speech indicate thatthroughout the call he was shaken and still under the stress of the event. Accordingly, the excitedutterance exception applied, and Supreme Court properly admitted the 911 tape for the truth ofthe matter asserted therein (see People v Haskins, 121 AD3d at 1184; compare People v Cantave, 21 NY3d374, 382 [2013]). Furthermore, defendant's Confrontation Clause rights were not violatedbecause the statements uttered during the 911 call, which was made for the purpose of obtainingemergency assistance, were nontestimonial (see [*3]People v Nieves-Andino, 9NY3d 12, 15-16 [2007]; People vCarrasquillo-Fuentes, 142 AD3d 1335, 1337-1338 [2016], lv denied 28 NY3d1143 [2017]; People v Lind, 133AD3d 914, 915-916 [2015], lv denied 27 NY3d 1153 [2016]).
Defendant was not deprived of meaningful representation. "A claimed violation of theconstitutional right to the effective assistance of counsel will not survive judicial scrutiny so longas the evidence, the law, and the circumstances of a particular case, viewed in totality and as ofthe time of the representation, reveal that the attorney provided meaningful representation" (People v Taylor, 126 AD3d 1120,1121 [2015] [internal quotation marks, brackets and citations omitted], lv denied 25NY3d 1172 [2015], cert denied 577 US &mdash, 136 S Ct 1172 [2016]). Defendantargues that counsel was ineffective for failing to object to portions of the 911 tape based on lackof foundation, failing to object during the prosecutor's summation and requesting aninappropriate missing witness charge.
The statement in the 911 call that defendant "possibly shot" someone had a foundation.Contrary to defendant's assertion that the caller was entirely speculating about the perpetratorhaving a gun, the caller stated that "the guy was just right in front of me with the gun." Thislanguage indicates that the caller's statement was based on personal knowledge from his ownobservations. As there was a sufficient foundation for admission of the statement, any objectionwould have been futile. Thus, the failure to object did not constitute ineffective assistance (see People v Caban, 5 NY3d 143,152 [2005]; People vWeatherspoon, 86 AD3d 792, 793 [2011], lv denied 17 NY3d 905 [2011]).
During summation, defense counsel called the victim and his friend cowards for notappearing in court to testify, and asserted that they were afraid to come to court to have their liesexposed. The prosecutor, in his summation, discounted this argument and asserted that the victimhad another reason to be afraid and not testify, namely, that defendant had tried to kill him. Thiswas a fair response to the defense summation, based on the evidence concerning the crimes atissue, and did not imply that defendant had tried to intimidate the witnesses by threatening themat some time after the incident in question. Thus, an objection would not have beensustained.
Counsel sought and obtained a missing witness charge as to the victim and his friend, butdefendant contends that the charge was improperly addressed to the issue of identification ratherthan to whether the victim was actually shot by anyone. We disagree with defendant's assertionthat the charge as given stated or implied that the perpetrator had a gun or that the victim wasdefinitely shot. Even if counsel erred by failing to properly craft his request for a missing witnesscharge, this mistake "was not so egregious and prejudicial as to constitute one of the rare caseswhere a single error results in ineffectiveness" (People v Ford, 110 AD3d 1368, 1370 [2013], lv denied 24NY3d 1043 [2014]; see People v Caban, 5 NY3d at 152). From his opening throughsummation, counsel consistently pursued a reasonable strategy of attacking the People's case forfailing to obtain testimony from the only alleged witnesses and as lacking direct proof that thevictim was shot. In addition to procuring a concession from the doctor that the victim's woundmay not have been from a gunshot, counsel obtained an acquittal of the attempted murder count(see People v Bowman, 139 AD3d1251, 1253 [2016], lv denied 28 NY3d 927 [2016]). Considering the record as awhole, defendant received meaningful representation (see People v Smith, 157 AD3d 978, 982 [2018], lv denied— NY3d — [May 22, 2018]).
This Court's review of the grand jury minutes reveals no error warranting reversal (see [*4]People v Nelson, 156 AD3d 1112, 1116 n 1 [2017]).Finally, the sentence is not harsh or excessive (see People v Lozada, 35 AD3d 969, 971 [2006], lv denied 8NY3d 947 [2007]).
Devine, Clark, Aarons and Pritzker, JJ., concur. Ordered that the judgment is affirmed.