| People v Smith |
| 2019 NY Slip Op 02911 [171 AD3d 1102] |
| April 17, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Shannon Smith, Appellant. |
Daniel Guttmann, Smithtown, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Joseph N. Ferdenzi, and Christopher J. Blira-Koessler of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (MichaelAloise, J.), rendered January 11, 2016, convicting him of attempted murder in the second degree(two counts), assault in the first degree (two counts), criminal possession of a weapon in thesecond degree, reckless endangerment in the first degree, criminal possession of a weapon in thethird degree, and resisting arrest, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The charges against the defendant arose from a shooting in Astoria, Queens, that occurred onJuly 3, 2014. One victim was shot in his arm, back, and leg, and a second victim, who was 15years old at that time, was shot in the shoulder. After a brief car chase, the police, who had beenin the vicinity at the time of the shooting, apprehended the defendant. The father of the15-year-old victim, who had witnessed the shooting, identified the defendant as the shooter.When the defendant was arrested, he had a gun which later tests revealed matched the ballisticsevidence collected at the scene of the shooting. After a jury trial, the defendant was convicted ofattempted murder in the second degree (two counts), assault in the first degree (two counts),criminal possession of a weapon in the second degree, reckless endangerment in the first degree,criminal possession of a weapon in the third degree, and resisting arrest.
The defendant contends that his convictions were against the weight of the evidence. Infulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People vDanielson, 9 NY3d 342, 348 [2007]), we nevertheless accord great deference to thejury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Romero, 7 NY3d633, 643-644 [2006]; People v Mateo, 2 NY3d 383 [2004]). Upon reviewing therecord, we are satisfied that the verdicts of guilt were not against the weight of the evidence(see People v Romero, 7 NY3d at 643-644; People v Spratley, 159 AD3d 725, 731 [2018]; People v Jones, 139 AD3d 878[2016]).
We agree with the Supreme Court's determination allowing the admission of a recording of acall to the 911 emergency number made by the father of the then-15-year-old victim. The recordestablished that the declarant made the call within seconds of the shooting after his son cried outthat he had been shot, and the father saw his neighbor, who was also shot and who the fatherthought was dying, fall to the ground in a pool of blood. Although the declarant's statements tothe 911 operator were hearsay, they were nevertheless admissible under the exception for excitedutterances " 'made contemporaneously or immediately after a startling event' "(People v Cummings, 31 NY3d204, 209 [2018], quoting People v Edwards, 47 NY2d 493, 496-497 [1979]; see People v Hernandez, 28 NY3d1056, 1057 [2016]) or present sense impressions made while he was "perceiving the event asit is unfolding or immediately afterward" which are "corroborated by independent evidenceestablishing [their] reliability" (People vCantave, 21 NY3d 374, 382 [2013]; see People v Jones, 28 NY3d 1037, 1038 [2016]). Accordingly, weagree with the court's determination that the recording was admissible as an excited utteranceand/or a present sense impression (seePeople v Martinez, 164 AD3d 1260, 1263 [2018]; People v Wisdom, 164 AD3d 928, 930-931 [2018]; People v Barnett, 163 AD3d 700,703 [2018]).
The defendant contends that the late disclosure of a recording of a 911 call made by anunidentified female declarant constituted a Brady violation (see Brady vMaryland, 373 US 83 [1963]), and that the Supreme Court should have admitted the phonecall into evidence. These contentions are without merit. " 'To establish a Bradyviolation, a defendant must show that (1) the evidence is favorable to the defendant because it iseither exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution;and (3) prejudice arose because the suppressed evidence was material' " (People v Hayes, 17 NY3d 46, 50[2011], quoting People v Fuentes,12 NY3d 259, 263 [2009]; seePeople v Spruill, 164 AD3d 1270 [2018]). The recording of the 911 call made by theunidentified female declarant was disclosed to defense counsel 12 days before the court begantaking testimony and, in any event, the contents of the call were inadmissible hearsay, as therewas no evidence that the declarant personally observed the incident (see People vCummings, 31 NY3d at 209). Accordingly, the defendant cannot establish either that thePeople suppressed the evidence or that, even if it was suppressed, that suppression resulted in anyprejudice to him.
The defendant's contention that he was not permitted to present evidence and argument at theSandoval hearing (see People v Sandoval, 34 NY2d 371 [1974]) is unpreservedfor appellate review and, in any event, is not supported by the record (see People v Jackson, 29 NY3d 18,22 [2017]; People v Barnett, 163AD3d 700, 701-702 [2018]). Moreover, the Sandoval compromise adopted by theSupreme Court was not improper (see People v Jackson, 29 NY3d at 21, 23; People v Smith, 18 NY3d 588,597-598 [2012]; People v Ragland,136 AD3d 845 [2016]).
To the extent that the Supreme Court should not have allowed the father of the 15-year-oldvictim to testify that, at the time of the shooting, he and his son were waiting for a taxi to takethem to inform other family members of the death of their father/grandfather, on the ground thatthis information would tend to evoke sympathy from the jury, that prejudice was either dispelledby the court's instructions to the jury or was harmless in light of the overwhelming evidence ofthe defendant's guilt and the absence of any significant probability that any error contributed tohis conviction (see People v Cherry,163 AD3d 706, 707 [2018]; People v Crimmins, 36 NY2d 230, 237 [1975]).
The defendant's contention that he was deprived of a fair trial due to improper remarks madeby the prosecutor during summation is partially unpreserved for appellate review (seeCPL 470.05 [2]; People v Romero,7 NY3d 911, 912 [2006]; People v Wisdom, 164 AD3d at 930; People v Herrera, 161 AD3d 1006[2018]; People v Bethea, 159 AD3d710, 712 [2018]). In any event, to the extent that some of the challenged remarks wereimproper, those remarks did not deprive the defendant of a fair trial (see People vWisdom, 164 AD3d at 931; Peoplev Megnath, 164 AD3d 834, 836 [2018]; People v Wilson, 163 AD3d 881, 882 [2018]).
The defendant contends that the imposition of consecutive sentences for the two counts ofattempted murder in the second degree was illegal and that the sentence imposed was excessive.Pursuant to Penal Law § 70.25, " 'sentences imposed for two or moreoffenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) wherea single act constitutes one of the offenses and a material element of the other' " (People v McKnight, 16 NY3d 43,47 [2010], quoting People v Laureano, 87 NY2d 640, 643 [1996]; see People v Brahney, 29 NY3d10, 14 [2017]; People v Couser,28 NY3d 368, 375 [2016]; People vRodriguez, 25 NY3d 238, 244 [2015]; People v Wright, 19 NY3d 359, 363 [2012]). In determiningwhether consecutive sentences are permissible, " 'the sentencing court must first examinethe statutory definitions of the crimes for which defendant has been convicted,' "focusing on the " 'act or omission' " that makes up each crime (People vMcKnight, 16 NY3d at 48, quoting People v Laureano, 87 NY2d at 643; seePeople v Brahney, 29 NY3d at 14; People v Couser, 28 NY3d at 375; People vRodriguez, 25 NY3d at 244; People v Wright, 19 NY3d at 363). "Consecutivesentences can still be imposed where there is some overlap in the elements of multiple statutoryoffenses if the People can demonstrate that the acts or omissions committed by defendant wereseparate and distinct acts," but where the act or omission is "a single inseparable act that violatesmore than one statute, [a] single punishment must be imposed" (People v Frazier, 16 NY3d 36, 41[2010] [internal quotation marks omitted]; see People v Brahney, 29 NY3d at 14-15;People v Couser, 28 NY3d at 376; People v Rodriguez, 25 NY3d at 244;People v Wright, 19 NY3d at 364; People v McKnight, 16 NY3d at 48).
Here, the defendant fired multiple shots with the intent of hitting the older victim and one ofthose shots hit the 15-year-old victim. However, "[t]he test is not whether the criminal intent isone and the same and inspiring the whole transaction, but whether separate acts have beencommitted with the requisite criminal intent" (People v McKnight, 16 NY3d at 49[internal quotation marks omitted]). The shots which hit the two victims "were the result ofseparate and distinct acts of pulling a trigger to discharge a firearm" and "repetitive discrete acts,such as successive shots . . . [do not] somehow merge such that they lose theirindividual character where the same criminal intent . . . inspir[es] the wholetransaction" (id. [internal quotation marks omitted]). Accordingly, the imposition ofconsecutive sentences for the two counts of attempted murder in the second degree was legal.Moreover, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, without merit. Dillon, J.P., Austin, Miller and Duffy, JJ., concur.