| People v Flowers |
| 2018 NY Slip Op 07562 [166 AD3d 1492] |
| November 9, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Dominic Flowers, Appellant. |
Bridget L. Field, Rochester, for defendant-appellant.
Dominic Flowers, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.),rendered October 17, 2014. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree, assault in the first degree (two counts), assault in the seconddegree and criminal possession of a weapon in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trialof murder in the second degree (Penal Law § 125.25 [2]), assault in thesecond degree (§ 120.05 [2]), and two counts each of assault in the firstdegree (§ 120.10 [1], [3]) and criminal possession of a weapon in thesecond degree (§ 265.03 [1] [b]; [3]). Contrary to defendant's contention inhis main and pro se supplemental briefs, the evidence is legally sufficient to establish hisidentity as one of the people who opened fire on a crowded street, killing one person andinjuring two others (seegenerally People v Danielson, 9 NY3d 342, 349 [2007]; People vBleakley, 69 NY2d 490, 495 [1987]). The People presented evidence that defendantand a codefendant were driven to the scene of the shooting by defendant's sister.Moments after the two men exited the vehicle, the sister, who testified for the People attrial, heard numerous gunshots, and shortly thereafter the two men rushed back to hervehicle. At that time, defendant's sister observed defendant in possession of afirearm.
Moreover, casings found at the scene established that two different types of firearmswere used in proximity to each other and in proximity to the corner where defendant'ssister had parked her vehicle. One month later, ammunition matching the brandand caliber of both types of casings was found during the execution of asearch warrant at the residence of defendant's mother, which occurred while defendantwas present. In our view, " 'there is a valid line of reasoning and permissibleinferences from which a rational jury could have found [defendant's identity] provedbeyond a reasonable doubt' " (Danielson, 9 NY3d at 349; seegenerally Bleakley, 69 NY2d at 495).
Although defendant raises several other challenges to the legal sufficiency of theevidence, he failed to preserve those challenges for our review inasmuch as his motionfor a trial order of dismissal was not specifically directed at those grounds (see Peoplev Gray, 86 NY2d 10, 19 [1995]). In any event, we reject those challenges (seegenerally Bleakley, 69 NY2d at 495).
Viewing the evidence in light of the elements of the crimes as charged to the jury(see Danielson, 9 NY3d at 349), including the instruction that defendant could befound liable as either a principal or an accomplice (see Penal Law§ 20.00), we conclude that, contrary to defendant's contention in his mainand pro se supplemental briefs, the verdict on each count is [*2]not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495). Although different findings would not have beenunreasonable, we conclude that the jury did not fail to give the evidence the weight itshould be accorded (see generally id.). The jury credited the testimony ofdefendant's sister, and we defer to the jury's credibility determination under thesecircumstances (see People vWashington, 160 AD3d 1451, 1452 [4th Dept 2018]; People v Harris, 56 AD3d1267, 1268 [4th Dept 2008], lv denied 11 NY3d 925 [2009]).
Before trial, the People submitted a Sandoval application, notifying CountyCourt of their intent to impeach defendant's credibility by questioning him concerning hisprior criminal, vicious or immoral acts. The court permitted the People to questiondefendant concerning the facts and circumstances underlying one prior criminal act and,with respect to a second act, limited the People's questions to the existence of a felonyconviction. We conclude that the court did not abuse its broad discretion in its ruling (see generally People v Smith,27 NY3d 652, 660 [2016]), and the court's exercise of discretion "should not bedisturbed merely because the court did not provide a detailed recitation of its underlyingreasoning . . . , particularly where, as here, the basis of the court's decisionmay be inferred from the parties' arguments" (People v Walker, 83 NY2d 455,459 [1994]; see People vWertman, 114 AD3d 1279, 1281 [4th Dept 2014], lv denied 23 NY3d969 [2014]; cf. People vGraham, 107 AD3d 1421, 1422 [4th Dept 2013], affd 25 NY3d 994[2015]).
Defendant further contends in his main brief that the court erred in admitting inevidence the ammunition that was recovered during the search of the residence ofdefendant's mother. Initially we note that, contrary to defendant's contention, his allegedpossession of that ammunition does not constitute a prior bad act or a prior unchargedcrime and thus is not Molineux evidence (see generally People v Brewer, 129 AD3d 1619, 1620 [4thDept 2015], affd 28 NY3d 271 [2016]; People v Anderson, 304 AD2d450, 451 [1st Dept 2003], lv denied 100 NY2d 592 [2003]; People vDuggan, 229 AD2d 688, 689-690 [3d Dept 1996], lv denied 88 NY2d 984[1996]). Moreover, the court properly exercised its discretion in admitting theammunition in evidence inasmuch as it "was relevant circumstantial evidence ofdefendant's [participation in the shooting], specifically because the type [and brand] ofammunition matched the type of weapon [used in the shooting] and [the brand of casingsfound at the scene]. The connection between the rounds of ammunition and the chargessought to be proved was not so tenuous as to be improbable" (People v Vasquez,214 AD2d 93, 104 [1st Dept 1995], lv denied 88 NY2d 943 [1996], citingPeople v Mirenda, 23 NY2d 439, 453 [1969]; see People v Gray, 116 AD3d 480, 481 [1st Dept 2014],affd 27 NY3d 78 [2016]; cf. People v Buonincontri, 18 AD3d 569, 569 [2d Dept2005], affd 6 NY3d 726 [2005]).
We reject defendant's contention in his main brief that there was an insufficientfoundation for the admission in evidence of a surveillance video obtained from thehospital where the codefendant sought treatment after the shooting. The hospital'sdirector of corporate security, who maintained the building's video recording surveillancesystem and thus "was familiar with [its] operation" (People v Costello, 128 AD3d 848, 848 [2d Dept 2015],lv denied 26 NY3d 927 [2015], denied reconsideration 26 NY3d 1007[2015]), testified that the exhibit admitted at trial " 'truly and accuratelyrepresent[ed] what was before the camera' " on the night of the events(People v Patterson, 93 NY2d 80, 84 [1999]; see also People v Davis, 28 NY3d 294, 303 [2016]).
Defendant further contends in his main brief that he was denied a fair trial byprosecutorial misconduct on summation. That contention is not preserved for our review"inasmuch as defense counsel did not object to certain instances . . . andfailed to take any further actions such as requesting a curative instruction or moving for amistrial when his objections were sustained" (People v Gibson, 134 AD3d 1512, 1512-1513 [4th Dept2015], lv denied 27 NY3d 1151 [2016]; see People v Tolbert, 283 AD2d930, 931 [4th Dept 2001], lv denied 96 NY2d 908 [2001]). In any event, weconclude that the prosecutor's comments were not "so egregious" as to warrant reversaland did not cause "such substantial prejudice to . . . defendant that he [was]denied due process of law" (People v Mott, 94 AD2d 415, 418-419 [4th Dept1983]).
We reject the further contention of defendant in his pro se supplemental brief that hewas denied effective assistance of counsel. Insofar as defendant contends that defensecounsel failed to interview witnesses, did not consult with defendant, did not supplydefendant with [*3]discoverable material and improperlyadvised defendant not to testify, those contentions are based on matters outside therecord and are not reviewable on direct appeal (see People v Washington, 39 AD3d 1228, 1230 [4th Dept2007], lv denied 9 NY3d 870 [2007]; People v Lawrence, 27 AD3d 1120, 1121 [4th Dept 2006],lv denied 6 NY3d 850 [2006]). "Defendant's remaining complaints concerningdefense counsel's representation are based on disagreements with trial tactics, anddefendant has failed to establish the absence of any legitimate explanation for defensecounsel's decisions" (Lawrence, 27 AD3d at 1121; see People v Seaton, 147AD3d 1531, 1532 [4th Dept 2017]; see generally People v Caban, 5 NY3d 143, 154[2005]).
In his pro se supplemental brief, defendant contends that he was denied his right ofconfrontation when the autopsy report was admitted in evidence and one medicalexaminer was permitted to testify regarding the findings made and documented by asecond medical examiner who prepared the report. That contention is not preserved forour review (see People vChelley, 121 AD3d 1505, 1506 [4th Dept 2014], lv denied 24 NY3d1218 [2015], denied reconsideration 25 NY3d 1070 [2015]; People v Bonner, 94 AD3d1500, 1501-1502 [4th Dept 2012], lv denied 19 NY3d 1101 [2012],denied reconsideration 20 NY3d 1059 [2013]). In any event, defendant's contentionlacks merit (see People vFreycinet, 11 NY3d 38, 42 [2008]; see also People v John, 27 NY3d 294, 315 [2016];Chelley, 121 AD3d at 1506-1507; People v Acevedo, 112 AD3d 454, 455 [1st Dept 2013],lv denied 23 NY3d 1017 [2014]).
Although defendant further contends in his pro se supplemental brief that he wasdenied his right to be present at a material stage of the proceedings, we conclude thatdefendant "failed to meet his burden of coming forward with substantial evidenceestablishing his absence" from any material stage of the proceedings (People v Foster, 1 NY3d44, 48 [2003]; see People vRivera, 83 AD3d 1370, 1371 [4th Dept 2011], lv denied 17 NY3d 904[2011]).
Finally, we reject defendant's contention in his main and pro se supplemental briefsthat the sentence is unduly harsh and severe. Present—Whalen, P.J., Centra,Lindley, NeMoyer and Troutman, JJ.