| People v Maeweather |
| 2019 NY Slip Op 03852 [172 AD3d 1646] |
| May 16, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Tasheem Maeweather, Appellant. |
The Kindlon Law Firm, PLLC, Albany (Terence L. Kindlon of counsel), for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (McDonough, J.), rendered June23, 2017 in Albany County, upon a verdict convicting defendant of the crime of recklessendangerment in the first degree.
Defendant was charged in a four-count indictment with attempted murder in the seconddegree, attempted assault in the first degree, criminal possession of a weapon in the seconddegree and reckless endangerment in the first degree stemming from a shooting incident at ashopping mall in Albany County in November 2016. Following a jury trial, defendant wasconvicted of reckless endangerment in the first degree and acquitted of the remaining threecharges and was thereafter sentenced, as a predicate felony offender, to a prison term of3
Defendant's conviction was supported by legally sufficient evidence and was not against theweight of the evidence. "When considering a challenge to the legal sufficiency of the evidence,we view the evidence in the light most favorable to the People and evaluate whether there is anyvalid line of reasoning and permissible inferences which could lead a rational person to theconclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfythe proof and burden requirements for every element of the crime charged" (People v Robinson, 156 AD3d1123, 1124 [2017] [internal quotation marks and citations omitted], lv denied 30NY3d 1119 [2018]; see People vAnatriello, 161 AD3d 1383, 1384-1385 [2018], lv denied 31 NY3d 1144[2018]). In reviewing whether a conviction is supported by the weight of the evidence, we"decide whether, based on all the credible evidence, a different finding would not have beenunreasonable, and then, like the trier of fact below, weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony" (People v Nunes, 168AD3d 1187, 1188 [2019] [internal quotation marks and citations omitted]; see People v Granger, 166 AD3d1377, 1378 [2018]).
In order to find defendant guilty of reckless endangerment in the first degree, the People wererequired to prove that, "under circumstances evincing a depraved indifference to human life,[defendant] recklessly engage[d] in conduct which create[d] a grave risk of death to anotherperson" (Penal Law § 120.25; see People v Durham, 146 AD3d 1070, 1073 [2017], lvdenied 29 NY3d 997 [2017], denied reconsideration 29 NY3d 1078 [2017]; People v Heesh, 94 AD3d 1159,1161 [2012], lv denied 19 NY3d 961 [2012]). A person acts recklessly where he or she"is aware of and consciously disregards a substantial and unjustifiable risk" of his or her conduct,and where disregard of such a risk "constitutes a gross deviation from the standard of conductthat a reasonable person would observe in the situation" (Penal Law § 15.05 [3]; see People v Feingold, 7 NY3d288, 296 [2006]; People vMitchell, 94 AD3d 1252, 1254 [2012], lv denied 19 NY3d 964 [2012]).
The evidence at trial established that November 12, 2016 was a busy Saturday afternoon atthe mall with hundreds of people walking and shopping throughout the mall's multilevelconcourse. At approximately 2:24 p.m., two separate groups of young men encountered eachother on the lower level of the mall near the Apple Store. In one of the groups was defendant,dressed in a gray hoodie and sweat pants combination and white sneakers. Defendant exchangedwords with a member of the other group, who then proceeded to throw a punch at defendant.Defendant jumped back a couple of steps, pulled out a small silver-colored handgun, fired twoshots at the man who had tried to punch him and then fled the mall. Although defendant was notapprehended at the scene, the Albany Crime Analysis Center received a report that defendant hadbeen observed in the mall 10 minutes prior to the shooting. Data downloaded from aGPS-equipped ankle bracelet that defendant was wearing confirmed his presence at the mall atthe time of the shooting.[FN1] Various witness and video evidence depictedthe crowded conditions at the mall at the time of the shooting, which occurred in the vicinity ofpeople lined up at the Santa display. Although no gun was recovered, police retrieved a bulletfragment lodged 32 inches above the floor in a wall on the backside of an escalator. Finally, anoff-duty state trooper, who was shopping at the mall at the time of the incident, testified at trialand identified defendant as the person he saw pull a gun and fire two shots at the individual whohad tried to punch defendant.
Based on the foregoing, we find that a rational jury could conclude that, by intentionallyfiring two shots from a handgun in the middle of a busy shopping mall where hundreds of peoplewere present, defendant engaged in reckless conduct creating a grave risk of death to anotherperson (see People v Anatriello, 161 AD3d at 1384-1385; People v Graham, 14 AD3d 887,889 [2005], lv denied 4 NY3d 853 [2005]; People v Menard, 113 AD2d 972, 973[1985], lv denied 68 NY2d 772 [1986]; see also People v Byrd, 79 AD3d 1256, 1257 [2010]). Further,although a different verdict would not have been unreasonable, viewing the evidence in a neutrallight and deferring to the jury's credibility determinations, we find that the verdict was supportedby the weight of the evidence (see People v Durham, 146 AD3d at 1074; People vByrd, 79 AD3d at 1257). Finally, defendant's argument that the jury's decision to convict himof reckless endangerment in the first degree, but acquit him of criminal possession of a weaponin the second degree, was inconsistent was not preserved for our review, as defendant chose notto raise this argument to Supreme Court prior to the jury being discharged (see People v Pearson, 69 AD3d1226, 1227 [2010], lv denied 15 NY3d 755 [2010]; cf. People v Poulin, 159 AD3d1049, 1052-1053 [2018], lv denied 32 NY3d 940 [2018]; see also People v Abraham, 22 NY3d140, 146-148 [2013]).[FN2]
Garry, P.J., Devine, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Defendant was wearing the anklebracelet as a condition of his probation from a prior unrelated criminal conviction.
Footnote 2:Counsel conceded at oralargument that the verdict was not repugnant.