| People v Deverow |
| 2020 NY Slip Op 01359 [180 AD3d 1064] |
| February 26, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dashawn Deverow, Appellant. |
Paul Skip Laisure, New York, NY (Caitlin Halpern and Alice R. B. Cullina ofcounsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Gregory L. Lasak, J.), rendered October 3, 2016, convicting him of murder in thesecond degree and criminal possession of a weapon in the second degree, upon a juryverdict, and sentencing him to an indeterminate term of imprisonment of 23 years to lifeon the conviction of murder in the second degree and a determinate term ofimprisonment of 15 years plus 5 years of postrelease supervision on the conviction ofcriminal possession of a weapon in the second degree, the sentences to runconcurrently.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the sentence imposed on the conviction of murder in the seconddegree from an indeterminate term of imprisonment of 23 years to life to anindeterminate term of imprisonment of 17 years to life; as so modified, the judgment isaffirmed.
The defendant was convicted of murder in the second degree and criminal possessionof a weapon in the second degree in connection with a shooting that occurred onDecember 29, 2012, at approximately 12:30 a.m., in front of an apartment buildinglocated in Queens, resulting in the death of a 17-year-old male. Following his arrest andafter waiving his Miranda rights (see Miranda v Arizona, 384 US 436[1966]), the defendant provided a written statement to the police in which he admittedthat he was armed with a "long-nose revolver" when he arrived at the scene of theshooting and that he had fired three shots in the direction of a group of men known as the"40 Boys," but claimed that those men had fired the first shots at him and his friend. Atthe time of the shooting, the defendant was accompanied by codefendant JamaneYarbrough, who it was determined had fired the fatal shot.
The defendant contends that the verdict of guilt and the rejection of his justificationdefense were against the weight of the evidence. In fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the jury's verdict rejectingthe defendant's justification defense and finding him guilty was not against the weight ofthe evidence (see People vRomero, 7 NY3d 633 [2006]).
There is no merit to the defendant's contention that certain of the Supreme Court'sevidentiary rulings violated his right to present a defense. "[W]hile all relevant evidenceis admissible unless its admission violates some exclusionary rule, evidence is relevantonly if it tends to prove the existence or nonexistence of a material fact directly at issuein the case" (People vRobinson, 143 AD3d 744, 746 [2016]; see People v Jin Cheng Lin, 26 NY3d 701, 727 [2016]).Further, " 'well-established rules of evidence permit trial judges to excludeevidence if its probative value is outweighed by certain other factors such as unfairprejudice, confusion of the issues, or potential to mislead the jury' " (People v Powell, 27 NY3d523, 530 [2016], quoting Holmes v South Carolina, 547 US 319, 326[2006]). Here, although the defendant contends that the court should have admitted theresults of certain DNA testing performed on a firearm that was purportedly used inconnection with a "retaliation shooting," that evidence was not relevant, as it did not tendto prove the existence or nonexistence of a material fact directly at issue in this case, andany probative value was outweighed by the possible prejudicial impact on the jury. Thedefendant also argues that the court should have admitted into evidence recordings ofthree calls made to the 911 emergency number. However, that evidence similarly was notrelevant to the defendant's justification defense. Further, on cross-examination, defensecounsel was permitted to elicit testimony from one of the callers demonstrating thatcertain portions of her trial testimony were inconsistent with information conveyed byher during the 911 call.
We agree with the defendant, however, that the Supreme Court should not haveadmitted into evidence a revolver that was recovered by the police from underneath avehicle five to seven blocks away from the scene of the crime and approximately sevenhours after the shooting. The revolver was discovered by a passerby, who notified thepolice. "When real evidence is purported to be the actual object associated with a crime,the proof of accuracy has two elements. The offering party must establish, first, that theevidence is identical to that involved in the crime; and, second, that it has not beentampered with" (People v Julian, 41 NY2d 340, 342-343 [1977]). At trial, theonly eyewitness at the scene of the shooting who observed the defendant armed with afirearm testified that the defendant was armed with a "[s]ilver, long barrel" revolver.Contrary to the court's determination, although that testimony was somewhat consistentwith the defendant's description of his revolver, it was insufficient to provide reasonableassurances that the revolver that was admitted into evidence was the same revolver usedby the defendant during the shooting (cf. People v Davidson, 111 AD3d 848 [2013]). No forensicevidence was recovered from the subject revolver linking it to the defendant, and moresignificantly, the eyewitness was never asked, either by the police after the revolver wasrecovered or by the prosecution at trial, to identify the revolver as the "actual object"used by the defendant during the shooting (People v Julian, 41 NY2d at 342;cf. People v Flanigan, 174 NY 356, 368 [1903]; People v Roblee, 83 AD3d1126, 1127 [2011]; Peoplev Ortiz, 80 AD3d 628, 630 [2011]; People v Howard, 305 AD2d 869,870-871 [2003]). Further, there was no evidence in the record to support the court'sindependent observation that the revolver that was admitted into evidence was "veryuncommon" and a "very, very unique gun."
Nevertheless, under the circumstances of this case, the error in admitting the revolverwas harmless. There was no dispute that the defendant was in possession of a revolverwhen he arrived at the scene of the shooting and that he had fired three shots from hisrevolver. The salient issue before the jury was whether the defendant was justified indoing so based on his claim that the first shots were fired by the "40 Boys." Thus,whether the subject revolver was the actual object used by the defendant during theshooting was irrelevant, and there is no significant probability that the jury would haveacquitted the defendant had it not been for the error (see People v Crimmins, 36NY2d 230, 237 [1975]). In addition, on cross-examination, defense counsel elicitedtestimony demonstrating the absence of any forensic evidence linking the defendant tothe subject revolver and the absence of any ballistic evidence demonstrating when thatrevolver was last discharged, and that the police recovered the subject revolver fromunderneath a vehicle, whereas the defendant told the police that he had discarded hisrevolver while fleeing through "a backyard."
The defendant's contention that the Supreme Court's Sandoval ruling (seePeople v Sandoval, 34 NY2d 371 [1974]) deprived him of his constitutional right toa fair trial is unpreserved for appellate review, as he did not raise any constitutionalchallenge to the Sandoval ruling before the court (see CPL 470.05 [2]; People v Wheelings, 137AD3d 1310, 1311 [2016]). In any event, the court's Sandoval ruling did notdeprive the defendant of a fair trial. The court providently exercised its discretion inruling that, if the defendant testified, the prosecution could cross-examine him on theparticular facts underlying a prior conviction of criminal possession of a controlledsubstance in the seventh degree, as the defendant failed to show that allowing suchcross-examination was so prejudicial as to outweigh the probative value of thequestioning (see People v Hayes, 97 NY2d 203, 208 [2002]; People v DeJesus, 135 AD3d872, 873 [2016]; People vVetrano, 88 AD3d 750, 750 [2011]). That prior conviction was relevant to thedefendant's credibility because it evinced his willingness to place his own interests abovethose of society (see People v Sandoval, 34 NY2d at 377).
We agree with the denial of the defendant's Batson challenge (see Batsonv Kentucky, 476 US 79 [1986]) to the prosecutor's exercise of peremptorychallenges, as the defendant failed to make the requisite prima facie showing ofdiscrimination (see People v Childress, 81 NY2d 263, 268 [1993]; People v Cutting, 150 AD3d873, 874 [2017]; People vSydoriak, 147 AD3d 791, 792 [2017]; People v Rudolph, 132 AD3d 912, 913 [2015]).
The sentence imposed was excessive to the extent indicated herein.
The defendant's remaining contentions are without merit. Chambers, J.P., Roman,Cohen and Christopher, JJ., concur.