People v. Adams

• Citation: 2014 N.Y. Slip Op. 02349,117 A.D.3d 104,983 N.Y.S.2d 246
• Parties: The PEOPLE of the State of New York, Respondent, v. Sherman ADAMS, Defendant–Appellant.
• Decision Date: 03 April 2014
• Court: New York Supreme Court Appellate Division

117 A.D.3d 104
983 N.Y.S.2d 246
2014 N.Y. Slip Op. 02349

The PEOPLE of the State of New York, Respondent,
v.
Sherman ADAMS, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

April 3, 2014.

[983 N.Y.S.2d 247]

Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod and Susan Gliner of counsel), for respondent.

[983 N.Y.S.2d 248]

ROLANDO T. ACOSTA, J.P., DIANNE T. RENWICK, RICHARD T. ANDRIAS, DAVID B. SAXE, SALLIE MANZANET–DANIELS, JJ.

ANDRIAS, J.

Defendant was accused of firing shots into a car, killing two of the occupants and seriously injuring a third. A second gunman was not apprehended. The theory of the defense was that defendant was an innocent bystander who was misidentified by two police officers to cover their miscue after they mistakenly shot and wounded him when they arrived at the scene after the shooting. Following two mistrials in which the juries were unable to agree on a unanimous verdict, defendant was convicted of murder in the first and second degrees, attempted murder in the second degree, and criminal possession of a weapon in the second and third degrees.

Defendant's argument that the trial court intervened excessively during the questioning of the People's gunshot residue experts, FBI analyst Cathleen Lundy and private examiner Alfred Schwoeble, who linked a denim jacket worn by defendant to a 9 millimeter semiautomatic handgun used in the shooting, is not preserved (CPL 470.05[2]; see People v. Charleston, 56 N.Y.2d 886, 453 N.Y.S.2d 399, 438 N.E.2d 1114 [1982];People v. Whitecloud, 110 A.D.3d 626, 973 N.Y.S.2d 216 [1st Dept.2013]; People v. Rios–Davilla, 64 A.D.3d 482, 883 N.Y.S.2d 480 [1st Dept.2009], lv. denied13 N.Y.3d 838, 890 N.Y.S.2d 454, 918 N.E.2d 969 [2009] ), and we decline to review it in the interest of justice. No objections to the court's conduct were raised by defendant at trial. As an alternative holding, we find no basis for reversal. The prosecution's case, which included a police identification that was corroborated by other eyewitness testimony and forensic and circumstantial evidence, was extremely strong, and the trial court's interventions, even where imprudent, did not prevent the jury from reaching an impartial verdict based upon the evidence presented.

At the month-long trial, Officer Peter Anselmo and his partner, Officer Edward Polstein, testified that they were canvassing an area in an unmarked police van, with a witness to a unrelated crime, when they heard shots. As they approached the intersection of West 26th Street and 10th Avenue, the officers saw two black males firing handguns into a green car. One was on the driver's side, and the other was on the passenger's side. Both wore dark clothing, and the driver's-side shooter was wearing a baseball cap. This testimony was corroborated by the witness who had been canvassing with the officers, who testified that there were two men shooting into the green car when the police van turned onto 10th Avenue and that one of the shooters was wearing dark jeans and a coat, with something on his head.

Anselmo and Polstein testified that they exited the van and yelled, “Police, stop.” Defendant turned toward the officers and raised his arm as if he were pointing a weapon at them. In response, the officers fired their weapons at defendant, who (according to Anselmo) initially fell, but then continued running along West 26th Street and across 9th Avenue into a New York City housing project. This testimony was corroborated by a resident of a building on West 26th Street, who testified that one of the two men turned and pointed a gun at the officers, and that the two men, both of whom were wearing dark clothing, ran away after the officers fired their weapons.

Anselmo testified that as he and Polstein pursued the perpetrators, Polstein fell and hurt his knee, and thus was not able to continue the direct pursuit. This testimony was corroborated by another resident

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of a building overlooking the scene, who testified that she was awakened by gunfire and saw two men followed by a police officer running along 26th Street towards the Hudson Guild Community Center.

After losing sight of the shooters for a few seconds, Anselmo saw defendant's accomplice move his hand as if to help defendant remove his jacket, under a lamppost by a chain link fence near the Hudson Guild.¹ Defendant looked toward Anselmo and threw something behind an iron fence. This testimony was corroborated by an independent eyewitness who saw two men running through the Hudson Guild area and saw one of them struggling to remove his jacket.

Officer John DiCarlantonio, responding to a radio transmission, came over to Anselmo, who pointed out defendant, who was running out of the housing project. DiCarlantonio followed, and repeatedly shouted at defendant to stop, but defendant continued north on 10th Avenue. After DiCarlantonio tackled him, Anselmo identified defendant, who was bleeding from his wounds, as the one who had pointed a gun at him, and noted that his hat distinguished him from his accomplice. When Polstein arrived at the scene of the arrest, he recognized defendant's dark clothing, and noticed a baseball cap on the ground.

Anselmo retraced his route and observed a trail of blood. He located a black denim jacket right over the fence from where he had seen defendant and his accomplice throw something; the jacket was processed by the Crime Scene Unit. A medical examiner conducted DNA tests of the blood taken from the trail on the street, the cap, the denim jacket, and the clothing defendant was wearing at the hospital. The testing revealed that all samples came from defendant.

Detectives recovered two handguns on the street near the intersection of 26th Street and 10th Avenue, a 9 millimeter Glock semiautomatic and a .40 caliber Glock semiautomatic. A total of 30 shell casings were found near the victims' car; 18 were 9 millimeter, and 12 were .40 caliber. Consistent with Anselmo's testimony, most of the 9 millimeter casings were on the driver's side, and most of the other casings were on the passenger's side.

After the first trial, FBI analyst Lundy conducted the first gunshot residue tests of the denim jacket and of the two handguns recovered by the police. A year later, private examiner Schwoeble conducted a second examination. Both experts concluded that based on the amount of tin particles on the objects, which were not typically found on ammunition manufactured by American companies, it was likely that the person who wore the jacket (defendant) also fired the 9 millimeter handgun or was standing next to someone who did so. Schwoeble rejected the possibility that the tin particles found on the jacket resulted from cross-contamination after the jacket had been spread out by police on the precinct's muster room floor, since the tin was found on the front of the jacket, and the jacket was spread with its back touching the floor. He also testified that his test results would not have been obtained from a person who had, after picking up the 9 millimeter Glock and putting it down, handled the jacket. While he acknowledged that the handling of firearms and ammunition could contribute to the transfer of gunshot residue onto an

[983 N.Y.S.2d 250]

item, that would not account for the residue on the jacket unless the gun had been banged on the floor to dislodge the particles from inside the barrel.

Defendant does not challenge the legal sufficiency of this evidence. He maintains that he was deprived of a fair trial because the trial court took over the questioning of Lundy by intervening with questions or comments on 30 of the 36 pages spanning her cross-examination, and participated equally with defense counsel in the cross-examination of Schwoeble by intervening on 14 of the 34 pages spanning his testimony. Defendant contends that by virtue of this interference, the court reinforced the experts' testimony that denim was the type of fabric that did not shed gunshot residue easily and that tin found both in the 9 millimeter handgun and on defendant's jacket.

The guarantee of a fair trial does not “inhibit a Trial Judge from assuming an active role in the resolution of the truth” ( People v. De Jesus, 42 N.Y.2d 519, 523, 399 N.Y.S.2d 196, 369 N.E.2d 752 [1977] ). Thus, a trial judge is permitted “to question witnesses to clarify testimony and to...