| People v Rashid |
| 2018 NY Slip Op 08199 [166 AD3d 1382] |
| November 29, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jamal Rashid, Appellant. |
David E. Woodin, Catskill, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Schenectady County(Murphy III, J.), rendered October 26, 2015, upon a verdict convicting defendant of thecrimes of attempted murder in the second degree, attempted assault in the first degree andcriminal possession of a weapon in the second degree (two counts).
In September 2014, the victim was shot in the torso during a street fight. The victimdid not identify the perpetrator, but an investigation pointed to defendant as the shooter.Defendant was accordingly charged in an indictment with various offenses and,following a jury trial, he was convicted of attempted murder in the second degree,attempted assault in the first degree and criminal possession of a weapon in the seconddegree (two counts). County Court sentenced defendant, as a second felony offender, toan aggregate prison term of 25 years to be followed by postrelease supervision of fiveyears. Defendant now appeals.
Defendant contends that the verdict was not based upon legally sufficient evidenceand was against the weight of the evidence, asserting a lack of proof identifying him asthe shooter. In that regard, two police officers testified that, between 11:15 p.m. and11:20 p.m. on the evening in question, they were in the area, observed people millingabout in a parking lot and, on closer inspection, saw a fistfight between two men. Theofficers intervened and talked to the men, who carried identification showing them to bedefendant and the victim. Inasmuch as the men were cooperative, had no significantinjuries and did not want to press charges, the officers left a few minutes later.
The shooting occurred at the end of a second fight that happened nearby a littlebefore 11:45 p.m.—a point confirmed by, among other things, video footage frommunicipal street cameras, two expended shells recovered from the scene, the testimony ofthe victim and other eyewitnesses and the timing of several 911 calls—and thevideo shows several individuals [*2]loitering in front of abusiness and a scuffle between two men that ends with one producing what appears to bea handgun and firing point blank at the other. The crowd scatters, leaving the shooterholding the handgun in his hand. The victim was struck in the left side and, although hedid not name defendant as the shooter, he testified that he fought the same adversary inboth altercations he was involved in that night. The officers who broke up the first fightbetween defendant and the victim agreed, recounting their involvement with the firstfight and reviewing the video footage to not only detail the movements of defendant andthe victim during the relevant period, but also to identify defendant as the shooter. Aneyewitness to the second fight, Trevon Brunson, similarly testified that he knewdefendant and the victim, albeit by their street names, and that they were the twocombatants. The foregoing, "when viewed in the light most favorable to the People,. . . provided a valid line of reasoning and permissible inferences fromwhich a jury could conclude that defendant was the shooter" (People v Madison, 148 AD3d1289, 1290 [2017] [citation omitted], lv denied 29 NY3d 1130 [2017]; see People v Lanier, 130 AD3d1310, 1311 [2015], lv denied 26 NY3d 1009 [2015]). Further, assuming thatthe trial evidence left acquittal as a reasonable possibility, "after viewing the evidence ina neutral light, while according deference to the jury's credibility determinations, we areunpersuaded that the verdict was against the weight of the evidence" (People v Miller, 118 AD3d1127, 1129 [2014], lv denied 24 NY3d 1086 [2014]; see People vLanier, 130 AD3d at 1311).
Defendant next argues that County Court should have granted his motion to precludeidentification testimony of Brunson based upon the failure of the People to give timelynotice of that proof as required by CPL 710.30. "Pursuant to CPL 710.30 (2), the Peoplemust serve upon a defendant, within 15 days after arraignment, their notice of intentionto offer evidence of a pretrial identification of a defendant" (People v Green, 127 AD3d1473, 1475 [2015], lv denied 27 NY3d 965 [2016]; see People vMcMullin, 70 NY2d 855, 856 [1987]). The People could not have complied withthat requirement with regard to Brunson, as they did not know that he was an eyewitnessto the shooting until another bystander identified him as such a few days before trial.Brunson was then interviewed and he identified defendant from a photo array, and thePeople notified defendant of that fact at jury selection the next morning. County Courtdid not err under these unusual circumstances in finding good cause for the late noticeand, following a Wade hearing, permitting the use of the identification at trial(see CPL 240.60, 710.30 [2]; People v Green, 127 AD3d at 1476;People v Haggins, 148 AD2d 987, 987 [1989], lv denied 74 NY2d 664[1989]; see also People v Whitaker, 106 AD2d 594, 594-595 [1984]).
Defendant further argues that County Court erroneously permitted the use at trial ofhis street name, Molly, and should have granted his application for a mistrial andsubsequent motion to set aside the verdict upon that basis. There is nothing "inherentlyprejudicial" in that moniker—which has innocent as well as unsavory meaningsand could easily be a diminutive of defendant's given name—and it was probativeto the disputed question of identity in that Brunson only knew defendant by that name(People v Smith, 157 AD3d978, 979 [2018], lv denied 31 NY3d 1087 [2018]). Accordingly, its use didnot deprive defendant of a fair trial, and County Court did not abuse its discretion inpermitting that use (see People v Smith, 157 AD3d at 979; People v Hernandez, 89 AD3d1123, 1125-1126 [2011], lv denied 20 NY3d 1099 [2013]; People vCandelario, 198 AD2d 512, 513 [1993], lv denied 83 NY2d 803[1994]).
Defendant's remaining contentions may be dispatched without difficulty. This casewas transferred from County Court to Supreme Court for pretrial proceedings and,although there is no "transfer order or notation in the record transferring the case fromSupreme Court back to County Court" for trial, defendant failed to raise thatnonjurisdictional issue in a timely manner and therefore waived it (People v Woodrow, 91 AD3d1188, 1189 [2012], lv denied 18 NY3d 999 [2012]). Defendant's complaintthat the People engaged in improper bolstering of certain witnesses is largelyunpreserved (see CPL 470.05 [2]; People v Hunt, 39 AD3d 961, 964 [2007], lv denied9 NY3d 845 [2007]) and, to the extent that it is preserved, any error was harmless giventhe video evidence and related testimony affording overwhelming proof of defendant'sidentity as the shooter (seePeople v Shortell, 155 AD3d 1442, 1446 [2017], lv denied 31 NY3d1087 [2018]; People vRivera, 31 AD3d 1060, 1061 [2006], lv denied 7 NY3d 869 [2006]).Defendant raises unpreserved issues in his pro se supplemental brief but also argues thathe [*3]received the ineffective assistance of counsel. Thefew supposed deficiencies that defendant cites have little merit, however, and our reviewof the record as a whole reveals that he received meaningful representation (see People v Richardson, 162AD3d 1328, 1333 [2018]; People v Perry, 154 AD3d 1168, 1171 [2017]). Lastly, afterconsidering defendant's criminal history and the nature of the offenses for which he wasconvicted, we do not perceive the aggregate sentence to be harsh or excessive (see People v Townsend, 144AD3d 1196, 1197 [2016], lv denied 28 NY3d 1189 [2017]; People v Martin, 136 AD3d1218, 1220 [2016], lv denied 28 NY3d 972 [2016]).
McCarthy, J.P., Mulvey, Rumsey and Pritzker, JJ., concur. Ordered that the judgmentis affirmed.