People v. Anderson

• Decision Date: 29 July 2015
• Docket Number: 2012-01294
• Citation: 130 A.D.3d 1055,15 N.Y.S.3d 103,2015 N.Y. Slip Op. 06355
• Parties: The PEOPLE, etc., respondent, v. Trevor ANDERSON, appellant.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 1055

15 N.Y.S.3d 103

2015 N.Y. Slip Op. 06355

The PEOPLE, etc., respondent

v.Trevor ANDERSON, appellant.

2012-01294

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

July 29, 2015.

Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort, and Gabrielle Lang of counsel), for respondent.

WILLIAM F. MASTRO, J.P., PETER B. SKELOS, THOMAS A. DICKERSON, and HECTOR D. LaSALLE, JJ.

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.), rendered January 3, 2012, convicting him of attempted murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On March 24, 2010, at approximately 1:10 a.m., Diana Perez's boyfriend, Erick Brown–Gordon, was crossing the street in front of his house when the defendant, Perez's ex-boyfriend, walked up to him and, after a short verbal exchange, took out a .45 caliber automatic revolver and shot him twice in the abdomen. As Brown–Gordon turned around and attempted to flee, the defendant shot him two more times, this time in the back. Brown–Gordon collapsed, face down, on the ground in front of his nearby home. Brown–Gordon's father, who had observed the shooting from inside his house, ran out and asked his son who had shot him. Brown–Gordon answered “Trevor,” the defendant. Brown–Gordon identified the defendant from a lineup and identified him in court as the individual who had shot him.

Contrary to the defendant's contention, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that the identification evidence was legally sufficient. Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the jury's finding that the defendant was the shooter was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 644–645, 826 N.Y.S.2d 163, 859 N.E.2d 902 ). Neither Perez's level of intoxication nor the inconsistencies between Brown–Gordon's prior statements to the police and before the grand jury, on the one hand, and his trial testimony, on the other, were so significant as to render their testimony incredible or unreliable (see People v. Almonte, 23 A.D.3d 392, 393, 806 N.Y.S.2d 95 ; People v. Lambert, 272 A.D.2d 413, 414, 709 N.Y.S.2d 189 ).

We agree with the defendant that the Supreme Court improvidently exercised its discretion in determining, after a Sandoval hearing (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ), that the People could inquire about the defendant's prior conduct of possessing guns. Whereas “[c]ommission of perjury or other crimes or acts of individual dishonesty, or untrustworthiness ... will usually have a very material relevance, whenever committed” (id. at 377, 357 N.Y.S.2d 849, 314 N.E.2d 413 ), the fact that the defendant had possessed guns on a prior occasion had little bearing on his credibility (cf. People v. Grant, 7 N.Y.3d 421, 425, 823 N.Y.S.2d 757, 857 N.E.2d 52 ). However, the error was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 ). Moreover, under the circumstances of this case, this error did not deprive the defendant of a fair trial.

The defendant's...