| People v Carrasquillo |
| 2019 NY Slip Op 01984 [170 AD3d 1592] |
| March 15, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Eddie Carrasquillo, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Elizabeth Riker of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Kenneth H. Tyler, Jr., of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), renderedJanuary 15, 2016. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree, assault in the first degree, and criminal possession of a weapon in the seconddegree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]), assault in the first degree(§ 120.10 [1]), and two counts of criminal possession of a weapon in the seconddegree (§ 265.03 [1] [b]; [3]). The prosecution arose from an incident that occurredat approximately 6:15 p.m. on a day in August 2014, outside of a house in Syracuse. Two victimswere struck by bullets fired from a passing red Honda sedan as they sat on the front porch, killingone of them and injuring the other. Shortly after midnight that night, the police stoppeddefendant, who was driving a red Honda sedan. The police officer who stopped defendantobserved a shell casing sitting in a crease between the car's hood and fender, and a recordingfrom a video camera on a neighboring house depicted a handgun being fired from the driver'swindow of the car during the shooting. Several witnesses identified defendant as the driver of thecar and the person who fired out of the window.
Defendant contends that the verdict is contrary to the weight of the evidence because, interalia, the surviving victim described an additional shooter who fired a weapon from the reardriver's side seat of the car, thus creating reasonable doubt whether defendant is the person whofired the fatal and injurious shots. We reject that contention. Initially, although the survivingvictim's testimony was given through an interpreter and is difficult to follow, contrary todefendant's contention, the surviving victim did not testify that the rear driver's side passengerfired a weapon. In addition, the evidence establishes that the shell casings found at the scene andthe shell casing found on defendant's car were all fired from the same weapon, that all of theprojectiles recovered from the deceased victim and elsewhere at the scene were fired from asingle weapon, that the driver is the only person who can be seen firing a weapon in the videorecording, that defendant was the driver and fired a weapon at the victims, that his fingerprintswere found on the inside of the driver's door, and that he was later found driving the car. Viewingthe evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). " 'Numerouswitnesses inculpated defendant[ ], and the jury could have reasonably concluded that differencesin their perception and memory of details of this fast-paced, chaotic event accounted for theinconsistencies' " in the testimony upon which defendant relies (People v Romero, 7 NY3d 633,636 [2006]). " '[T]he jury was in the best position to assess the credibility of thewitnesses and, on this record, it cannot be said that the jury failed to give the evidence the weightit should be accorded' " (Peoplev Kalinowski, 118 AD3d 1434, 1436 [4th Dept 2014], lv denied 23 NY3d 1064[2014]).
We reject defendant's further contention that he was deprived of effective assistance ofcounsel. Contrary to defendant's assertion, defense counsel was not ineffective for failing to call awitness who could bolster the purported testimony of the surviving victim that there was asecond shooter. Inasmuch as the uncalled witness provided a deposition indicating, among otherthings, that she saw defendant shoot the victims, "defense counsel's failure to call [that] witness[] was a matter of strategy" (People vGonzalez, 62 AD3d 1263, 1265 [4th Dept 2009], lv denied 12 NY3d 925[2009]; see People v Morgan, 77AD3d 1419, 1420 [4th Dept 2010], lv denied 15 NY3d 922 [2010]). To the extentthat defendant contends that defense counsel was ineffective for failing to introduce evidence of aprior altercation between the deceased victim and the rear driver's side passenger that provided amotive for the passenger to attack the victims, his contention is based on matters outside therecord on appeal and thus must be raised by way of a motion pursuant to CPL article 440 (see People v Resto, 147 AD3d1331, 1334-1335 [4th Dept 2017], lv denied 29 NY3d 1000 [2017], deniedreconsideration 29 NY3d 1094 [2017]; People v Lawrence, 23 AD3d 1039, 1040 [4th Dept 2005], lvdenied 6 NY3d 835 [2006]; People v Ward, 291 AD2d 906, 907 [4th Dept 2002],lv denied 98 NY2d 641 [2002]).
Finally, the sentence is not unduly harsh or severe. Present—Whalen, P.J., Smith,Centra, Carni and Troutman, JJ.