People v. Fama

• Citation: 622 N.Y.S.2d 732,212 A.D.2d 542
• Parties: The PEOPLE, etc., Respondent, v. Joseph FAMA, Appellant.
• Decision Date: 06 February 1995
• Court: New York Supreme Court Appellate Division

Page 732

622 N.Y.S.2d 732

212 A.D.2d 542

The PEOPLE, etc., Respondent, v. Joseph FAMA, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 6, 1995.

DePetris & Meyer, Merrick (Stanley M. Meyer, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Roseann B. MacKechnie, Leonard Joblove, and Monique Ferrell, of counsel), for respondent.

Before MANGANO, P.J., and BALLETTA, O'BRIEN and HART, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Owens, J.), rendered June 11, 1990, convicting him of murder in the second degree, riot in the first degree, unlawful imprisonment in the first degree (three counts), criminal possession of a weapon in the third degree, discrimination (four counts), and menacing (three counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's generalized motion to dismiss was insufficient to preserve for appellate review his claims that the proof of identification was legally insufficient to establish his guilt of depraved indifference murder beyond a reasonable doubt (People v. Bynum, 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4; People v. Jackson, 182 A.D.2d 705, 706, 582 N.Y.S.2d 473). In any event, viewing the evidence in the light most favorable to the prosecution (People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that the identification testimony of the eyewitness, who had known the defendant for approximately 15 years, was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Additionally, immediately prior to the shooting, the defendant was observed running toward the scene of the shooting by another witness and the defendant later admitted to fellow inmates that he shot the victim. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15[5].

The trial court properly admitted evidence of the defendant's flight. To be admissible, evidence of flight need not be unequivocal or exclude every possible innocent motive (see, People v. Yazum, 13 N.Y.2d 302, 304, 246 N.Y.S.2d 626, 196 N.E.2d 263; People v. Guthrie, 157 A.D.2d 668, 670, 549 N.Y.S.2d 770). Ambiguities or explanations tending to rebut an inference of guilt may be introduced as a part of the defense rather than to render the evidence inadmissible (see, People v. Yazum, supra, 13 N.Y.2d at 305, 246 N.Y.S.2d 626, 196 N.E.2d 263). Accordingly, the mere fact that the flight took place a day after the crime, rather than immediately following the crime, does not necessitate its exclusion (see, People v. Shepherd, 176 A.D.2d 369, 370, 574 N.Y.S.2d 596). Similarly, the fact that the defendant eventually surrendered to the police does not render the evidence of flight inadmissible.

Absent a compelling reason, the order of trial prescribed by CPL 260.30 should be followed (see, People v. Farrow, 176 A.D.2d 130, 131, 574 N.Y.S.2d 17; People v. Theriault, 75 A.D.2d 971, 428 N.Y.S.2d 365)....