| People v Bailey |
| 2020 NY Slip Op 01744 [181 AD3d 1172] |
| March 13, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Leron Bailey, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered March 6, 2018. The judgment convicted defendant upon a jury verdict ofmurder in the second degree, attempted murder in the second degree and criminalpossession of a weapon in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of murder in the second degree (Penal Law § 125.25 [1]), attemptedmurder in the second degree (§§ 110.00, 125.25 [1]), and two countsof criminal possession of a weapon in the second degree (§ 265.03 [3]).Defendant's conviction stems from two incidents. In the first incident, he possessed aloaded firearm and fired shots in the air. That incident was witnessed by a formerneighbor of defendant. In the second incident, which occurred 10 months later, defendantfired shots at a person who was sitting in the driver's seat of a parked vehicle (victim) andwho was familiar with defendant. One bullet struck the victim, injuring him, and anotherbullet struck a backseat passenger, killing her.
We reject defendant's contention that Supreme Court erred in refusing to suppressthe identifications of defendant made by the witness to the first incident and the victim ofthe second incident. The first photo array identification procedure completed with thewitness to the first incident was not in any way suggestive, and she immediatelyidentified defendant as the perpetrator. The second photo array identification procedurecompleted with that witness occurred during her grand jury testimony, and we concludethat the witness's identification of defendant from the second photo array, which wasidentical to the first photo array, was merely confirmatory of her first identification (see People v Walden, 37 AD3d1067, 1067 [4th Dept 2007], lv denied 8 NY3d 992 [2007]; People vFloyd, 135 AD2d 650, 650 [2d Dept 1987], lv denied 70 NY2d 1006[1988]). Two photo array identification procedures were also conducted with the victimof the second incident. We conclude that any taint from the first identification procedurewas attenuated by, inter alia, the passage of six months between the first and secondidentification procedures (seePeople v Prindle, 63 AD3d 1597, 1598 [4th Dept 2009], mod on othergrounds 16 NY3d 768 [2011]; People v Molson, 89 AD3d 1539, 1540 [4th Dept 2011],lv denied 18 NY3d 960 [2012]; see generally People v Dickerson, 66 AD3d 1371, 1372[4th Dept 2009], lv denied 13 NY3d 859 [2009]).
We reject defendant's contention that the evidence is legally insufficient to establishhis identity as the shooter in the second incident (see generally People v Bleakley,69 NY2d 490, 495 [1987]). The victim of that incident identified defendant as theshooter, and the victim's testimony was not incredible as a matter of law (see People vMoore [appeal No. 2], 78 AD3d 1658, 1659 [4th Dept 2010], lv denied 17NY3d 798 [2011]). We further conclude that, viewing the evidence in light of theelements of the crimes arising from that incident as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), the verdict is not against the weight of the evidence withrespect to defendant's identity as the perpetrator of those crimes. In addition to thetestimony of the victim, there was testimony that the gun used in the first shooting, inwhich defendant was identified as the perpetrator by his former neighbor, was the samegun used in the second shooting. In addition, the shooter in the second incident was seenfleeing in a getaway vehicle that was identified by witnesses, which led to discovery ofthe identity of the driver of that vehicle. The evidence established that the driver anddefendant had exchanged several phone calls immediately before the shooting.Moreover, defendant's DNA could not be excluded from a mixture of DNA recoveredfrom the exterior passenger door handle of that vehicle and a cup from inside thevehicle.
Next, defendant contends that he was denied effective assistance of counsel. Defensecounsel's concession that defendant committed the first incident was a matter of strategygiven the strength of the eyewitness identification and was an attempt to show thatdefendant was not guilty of the more serious murder and attempted murder counts (see People v Jenkins, 90 AD3d1326, 1330 [3d Dept 2011], lv denied 18 NY3d 958 [2012]). Defensecounsel's admission to other bad conduct by defendant was also a matter of trial strategy(see generally People v Benevento, 91 NY2d 708, 712 [1998]). Defense counsel'sfailure to request a charge of the lesser included offense of reckless manslaughter doesnot constitute ineffective assistance. Viewing the evidence in the light most favorable todefendant (see People v Martin, 59 NY2d 704, 705 [1983]), we conclude thatthere was no reasonable view of the evidence that defendant engaged in reckless ratherthan intentional conduct when he fired several shots at close range toward the victim (see People v Seeler, 63 AD3d1595, 1596 [4th Dept 2009], lv denied 13 NY3d 838 [2009]; seegenerally People v Glover, 57 NY2d 61, 63 [1982]). The fact that one of his shotsmissed the target and struck the backseat passenger does not show that defendant'sconduct was reckless and not intentional. Thus, defense counsel was not ineffective forfailing to request that lesser included charge inasmuch as such a request would have hadlittle or no chance of success (see People v Henley, 145 AD3d 1578, 1580 [4th Dept2016], lv denied 29 NY3d 998 [2017], denied reconsideration 29 NY3d1080 [2017]; People vElian, 129 AD3d 1635, 1636 [4th Dept 2015], lv denied 26 NY3d 1087[2015]).
Defendant also contends that he was denied a fair trial by prosecutorial misconduct.Defendant objected to only one instance of alleged error by the prosecutor, therebyrendering the remaining instances unpreserved for our review (see People v Young, 153AD3d 1618, 1620 [4th Dept 2017], lv denied 30 NY3d 1065 [2017],denied reconsideration 31 NY3d 1123 [2018], cert denied 586 US&mdash, 139 S Ct 84 [2018]). In any event, we reject defendant's contention with respectto two unpreserved instances in which the prosecutor was alleged to have improperlyvouched for the quality of the evidence. Rather, the prosecutor was making fair commenton the evidence and responding to defense counsel's summation (see People v Coleman, 32AD3d 1239, 1240 [4th Dept 2006], lv denied 8 NY3d 844 [2007]). Wefurther reject defendant's contention with respect to one unpreserved and one preservedinstance in which the prosecutor was alleged to have improperly shifted the burden ofproof. Again, those statements were fair comment on the evidence and fair response todefense counsel's summation (see id.).
Defendant's contention that the sentence constitutes cruel and unusual punishment isnot preserved for our review (see People v Pena, 28 NY3d 727, 730 [2017]). Likewise,his contention that he was penalized for exercising his right to a trial is also not preservedfor our review (see People vMcCullough, 128 AD3d 1510, 1512 [4th Dept 2015], lv denied 26NY3d 1010 [2015]). We decline to exercise our power to review those contentions as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Finally,considering defendant's extensive criminal history and the nature of the offenses, weconclude that the sentence is not unduly harsh or severe. Present—Centra, J.P.,Carni, Lindley, NeMoyer and Bannister, JJ.