| People v Hairston |
| 2018 NY Slip Op 08688 [167 AD3d 935] |
| December 19, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eryc Hairston, Appellant. |
Douglas J. Martino, Rye Brook, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (John J. Carmody and StevenA. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (BarbaraG. Zambelli, J.), rendered August 30, 2016, convicting him of murder in the second degree, upona jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was walking on a street in Yonkers with a gun in his pocket when heencountered Kennedy Gonzalez and Gonzalez's friend. According to the friend's trial testimony,the defendant first approached them asking for a cigarette or "weed." When they told him theyhad neither, he walked past them on the street, turned around, pulled out the gun, and told themto empty their pockets. Gonzalez tried to swat the gun away, and the defendant shot Gonzaleztwice in the torso and ran away. Gonzalez later died at the hospital.
At trial, the defendant testified that he asked Gonzalez and the friend for a light, and that thefriend was verbally aggressive toward him. After the defendant passed the pair on the street, heheard clicking or snapping sounds behind him and turned around. He testified that the friend wasagain verbally aggressive, and after they all walked on a little further, the friend threatened himwith what looked like a knife. The defendant testified that he did not know that his gun wasloaded or operable, but that he pulled it out to scare the pair away. He testified that when heraised his arm to shield himself from the friend's advances, he and the friend made contact, andthe gun accidentally went off. The defendant testified that his eyes were closed during thephysical encounter with the friend. The defendant admitted that after the gun went off, heimmediately ran away and disposed of the gun. He also admitted that when he learned that he hadkilled Gonzalez, he went into hiding.
The defendant was charged in an indictment with, among other things, three murder counts:one count of murder in the first degree and one count of murder in the second degree (felonymurder)—both of which were based on the defendant's attempted robbery of the twomen—and one count of murder in the second degree (intentional murder). Duringdeliberations, the jury requested clarification of the term "in furtherance of" with regard to thetwo murder counts that were premised on the attempted robbery. In response, the County Courtread the relevant portion of the jury charge explaining the meaning of that term. The juryacquitted the defendant of both of those murder counts, but it convicted him of the countcharging murder in the second degree (intentional murder). The defendant appeals, arguing thatthe conviction was against the weight of the evidence, that the court committed reversible errorin clarifying the term "in furtherance of" for the jury, and that his sentence was excessive.
Upon the exercise of our factual review power, we are satisfied that the verdict was notagainst the weight of the evidence (see CPL 470.15 [5]). The issue of justificationpresented a question of credibility that the jury resolved in favor of the People (see People vJackson, 293 AD2d 488, 488 [2002]; People v O'Brien, 270 AD2d 433 [2000];People v Henry, 244 AD2d 424 [1997]). We discern no basis to disturb the jury'sresolution of this credibility issue and rejection of the justification defense.
The defendant's argument regarding the County Court's clarification of the term "infurtherance of" is academic, since he was acquitted of the two murder counts predicated on anattempted robbery (see People vMoore, 35 AD3d 291 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Balkin, J.P., Leventhal, Miller and Maltese, JJ., concur.