| People v Abreu |
| 2021 NY Slip Op 03631 [195 AD3d 1152] |
| June 10, 2021 |
| Appellate Division, Third Department |
[*1](June 10, 2021)
| The People of the State of New York,Respondent, v Hector Abreu, Also Known as Hector Abreau,Appellant. |
Craig Meyerson, Peru, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Egan Jr., J.P. Appeal from a judgment of the County Court of Schenectady County(Sypniewski, J.), rendered December 1, 2017, upon a verdict convicting defendant of the crimesof murder in the second degree, criminal possession of a weapon in the second degree (twocounts), attempted assault in the first degree and attempted criminal possession of a weapon inthe second degree (two counts).
In January 2017, defendant was charged by indictment with murder in the second degree andtwo counts of criminal possession of a weapon in the second degree stemming from allegationsthat, on June 27, 2014, he shot and killed the victim on the victim's front porch in the City ofSchenectady, Schenectady County. Defendant moved to, among other things, dismiss the chargeson constitutional speedy trial grounds and to suppress certain inculpatory statements that he madeto police and certain witness identification testimony. Following three separate hearings, ajudicial hearing officer recommended denial of defendant's motions, which recommendationsCounty Court fully adopted. Meanwhile, in June 2017, defendant was charged in a supplementalfour-count indictment with attempted murder in the second degree, attempted assault in the firstdegree and two counts of criminal possession of weapon in the second degree, stemming from aseparate incident on June 27, 2014 wherein he allegedly attempted to shoot the same victim witha 9 millimeter pistol at a different location. The two indictments were consolidated for trial.
Following a 14-day jury trial, defendant was convicted of murder in the second degree (count1), two counts of criminal possession of a weapon in the second degree (counts 2 and 3),attempted assault in the first degree (count 5) and two counts of attempted criminal possession ofa weapon in the second degree (counts 6 and 7), but was acquitted of attempted murder in thesecond degree (count 4). He was thereafter sentenced to various concurrent and consecutiveprison terms, for a total aggregate sentence of 40 years to life.[FN1] Defendant appeals.
Defendant contends that the jury's verdict is not supported by legally sufficient evidence andis against the weight of the evidence. Initially, although defendant made a specific motion for atrial order of dismissal after the People had rested their case challenging, among other things, thelack of proof regarding the operability of the 9 millimeter handgun referenced in counts 6 and 7,defendant failed to renew his motion at the close of all the proof and, therefore, his legalsufficiency argument is unpreserved for review (see People v Rahaman, 189 AD3d 1709, 1710 [2020], lvdenied 36 NY3d 1059 [2021]; People v Callahan, 186 AD3d 943, 943 [2020]). "Nevertheless, aspart of our weight of the evidence review, we must necessarily determine whether the elementsof the charged crimes were proven at trial beyond a reasonable doubt" (People v Smith, 193 AD3d 1260,1261 [2021] [internal quotation marks and citations omitted[*2]]). "When undertaking a weight of the evidence review, we mustfirst determine whether, based on all the credible evidence, a different finding would not havebeen unreasonable and, if not, then weigh the relative probative force of conflicting testimonyand the relative strength of conflicting inferences that may be drawn from the testimony todetermine if the verdict is supported by the weight of the evidence" (People v Vandenburg, 189 AD3d1772, 1772-1773 [2020] [internal quotation marks, brackets and citations omitted], lvdenied 36 NY3d 1054 [2021]).
The evidence at trial established that defendant was a member of a street gang. On theevening of June 26, 2014, the victim was involved in an altercation outside a bodega duringwhich Nick Gonzalez, a fellow gang member, was struck in the head with a beer bottle by one ofthe victim's friends. Although defendant was not present for that fight, that same evening, hestarted making inquiries to find out where the victim lived. Defendant rode his bicycle over to hisuncle's house—who lived next door to the victim's brother—borrowed a greyhooded sweatshirt and pulled a 9 millimeter handgun out of his backpack, loaded it and indicatedthat he needed to find the victim to make "an arrangement" with him as he had been involved "inan issue with a little brother." The uncle did not know the victim's address, so defendant calledhis stepfather—who knew the victim and had sold drugs to him—and ultimatelylearned where the victim lived.
Later that evening, defendant met Teillo McCants, a fellow gang member, on VictoryAvenue in Schenectady. They put on hooded sweatshirts, defendant gave McCants the backpackwith the handgun and they left on bicycles to locate the victim. Surveillance photos from variousstreet cameras captured defendant and McCants shortly after midnight on January 27, 2014 asthey made their way from Victory Avenue toward the victim's apartment on Main Street. As theyapproached the intersection of Ostrander Place and Main Street, they observed the victim andanother individual down the street. Defendant pulled the semiautomatic pistol out of thebackpack and attempted to fire at the victim, but the pistol failed to fire. Defendant and McCantsleft the scene and defendant called his stepfather and made arrangements to pick up anotherhandgun from one of the stepfather's acquaintances on Sixth Avenue. Defendant and McCantsbiked to Sixth Avenue and defendant picked up the other gun—a revolver—andreturned to the victim's apartment. They proceeded to walk through the victim's backyard andobserved him through his apartment window as he made his way towards the front door. Whenthe victim opened the door, defendant fatally shot the victim and fled. A few days later,defendant admitted to his stepfather that he tried to shoot the victim with the 9 millimeter pistolbut it had jammed and that, after he obtained the revolver, he "put three bullets in [thevictim]."[*3]
Upon review, although a different verdict would not have been unreasonable, evaluating theevidence in a neutral light, we are satisfied that the jury gave the evidence the weight that itshould have been afforded and that the People proved the elements of the subject crimes beyonda reasonable doubt (see People vWarner, 194 AD3d 1098, 1102-1104 [2021]; People v White-Span, 182 AD3d 909, 913-914 [2020], lvdenied 35 NY3d 1071 [2020]). Contrary to defendant's contention, although there wasevidence presented that the 9 millimeter handgun associated with counts 5, 6 and 7 did not firewhen defendant initially attempted to shoot the victim, the People were not required to prove theoperability of the weapon to establish an attempt, and the evidence otherwise demonstrated thatdefendant believed the gun to be operable when he pulled it out, pointed it at the victim andattempted to shoot him (see People v Saunders, 85 NY2d 339, 342 [1995]; People v Almodovar, 183 AD3d1243, 1244 [2020]; People vBoyd, 153 AD3d 1608, 1609 [2017], lv denied 30 NY3d 1103 [2018]).
County Court properly denied defendant's motion seeking dismissal of the indictment on theground that his constitutional speedy trial rights were violated based upon the 30-month delaybetween the June 2014 commission of the subject crimes and his January 2017 indictment.Where there is an extended period of preindictment delay, it is the People's burden to establishgood cause for the delay (see People vDecker, 13 NY3d 12, 14 [2009]; People v Singer, 44 NY2d 241, 253-254[1978]; People v Rogers, 157 AD3d1001, 1004 [2018], lv denied 30 NY3d 1119 [2018]). The relevant factors to beconsidered in determining whether a defendant has been denied his or her constitutional speedytrial rights include the extent of the delay, the reason for the delay, the nature of the charges, anyextended pretrial incarceration and any prejudice or impairment to the defendant as a result of thedelay (see People v Vernace, 96 NY2d 886, 887 [2001]; People v Taranovich, 37NY2d 442, 445 [1975]; People vYoung, 190 AD3d 1087, 1093 [2021], lv denied 36 NY3d 1102 [2021]).
Although the 30 months that elapsed between the incident and the indictment was notinsignificant, the evidence at the Singer hearing established that the People had a goodfaith basis justifying the delay in prosecution, as there were no independent eyewitnesses to theshooting, no murder weapon was recovered and the police were presented with a complexinvestigation involving reviewing surveillance footage from throughout the city, identifying andinterviewing witnesses with gang affiliations and criminal records that created reliability issuesand the corresponding need to corroborate witness statements. Ultimately, the People establishedthat, throughout the period of preindictment delay, they were actively attempting to identify theshooter and rule out other potential suspects. Further, although defendant [*4]was incarcerated from December 2014 until his indictment, thatincarceration was due to other charges unrelated to this case. Accordingly, given the lack of anydemonstrated prejudice or impairment to his defense, we do not find that the preindictment delayat issue denied defendant his constitutional due process or speedy trial rights (see People vYoung, 190 AD3d at 1093-1094; People v Heimroth, 181 AD3d 967, 970 [2020], lv denied35 NY3d 1027 [2020]).
We reject defendant's contention that the statements that he made to police during interviewsin November and December 2014 should have been suppressed because his limited proficiencyof the English language prevented him from knowingly, intelligently and voluntarily waiving hisMiranda rights. At the Huntley hearing, detective Donald Kisertestified—and video recordings of both police interviews confirm—that defendantwas advised of his Miranda rights during both interviews, affirmatively indicated that heunderstood the rights that he was waiving and signed a corresponding advisement of rights formto that effect. Defendant specifically indicated that he could read, write and understand English,at no point in time during either interview did he express any difficulty understanding thedetectives, the recorded interviews demonstrate that defendant and the detectives were readily able to converse with one another and defendant askedappropriate questions regarding his advisement of rights, demonstrating his comprehensionthereof. Accordingly, having reviewed the totality of the circumstances, we find that defendantknowingly, intelligently and voluntarily waived his Miranda rights, and his motion tosuppress the subject statements, therefore, was appropriately denied (see People v Vazquez, 145 AD3d1268, 1269-1270 [2016]; People vMao-Sheng Lin, 50 AD3d 1251, 1253-1254 [2008], lv denied 10 NY3d 961[2008]).
With respect to defendant's motion to suppress certain pretrial identifications, we find thatthe evidence adduced at the Rodriguez hearing established a sufficient relationshipbetween defendant and the identifying witnesses such that County Court appropriately denied themotion on the ground that the identifications were merely confirmatory (see People v Montes, 178 AD3d1283, 1290 [2019], lv denied 34 NY3d 1161 [2020]; see also CPL 710.60[4]).[FN2] Defendant'scontention that County Court erred by failing to hold a Dunaway hearing was notpreserved for our review as he failed to specifically request such a hearing in his omnibus motion(see People v Purcelle, 282 AD2d 824, 824-825 [2001]; People v Benson, 88AD2d 229, 230 [1982]). In any event, even assuming that his motion could be construed asrequesting such a hearing, his claim is without merit, as he failed to set forth any swornallegations of fact that would warrant conducting same (see People v Mendoza, 82 NY2d415, 426 [1993]; People v Brinkley,174 AD3d 1159, 1163 [2019], lv denied 34 NY3d 979 [2019]).
Finally, we are [*5]unpersuaded that defendant's sentence washarsh and excessive. It was permissible for County Court to impose consecutive sentences withrespect to defendant's convictions, as the underlying incidents set forth in the consolidatedindictments constituted separate and distinct events (see Penal Law § 70.25;People v Burns, 188 AD3d1438, 1443-1444 [2020], lv denied 36 NY3d 1055 [2021]). Moreover, althoughdefendant was only 19 years old when he committed the subject crimes, County Courtspecifically took defendant's age into account when rendering its sentence and, given theseriousness of the offenses for which he was convicted and his criminal history, we discern noabuse of discretion or extraordinary circumstances that would warrant a reduction of the sentencein the interest of justice (see People vMcCommons, 143 AD3d 1150, 1155 [2016], lv denied 29 NY3d 999 [2017]; People v Parbhudial, 135 AD3d978, 982 [2016], lv denied 27 NY3d 967 [2016]). To the extent not specificallyaddressed, defendant's remaining contentions have been reviewed and found to be withoutmerit.
Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The sentence was ordered to runconsecutively to a separate 12
Footnote 2:Although defendant contendsthat the People failed to establish the reliability or credibility of the identifying witnesses inviolation of the Aguilar-Spinelli test, this argument is unpreserved for our review asdefendant did not raise this issue at the suppression hearing (see People v Baptista, 130 AD3d 1541, 1543 [2015], lvdenied 27 NY3d 991 [2016]).