People v. Bianca

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: STEIN
• Citation: People v. Bianca, 91 A.D.3d 1127, 936 N.Y.S.2d 743, 2012 N.Y. Slip Op. 260 (N.Y. App. Div. 2012)
• Decision Date: 19 January 2012
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael J. BIANCA, Appellant.

2012 N.Y. Slip Op. 00260

91 A.D.3d 1127

936 N.Y.S.2d 743

The PEOPLE of the State of New York, Respondent,

v.Michael J. BIANCA, Appellant.

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

Jan. 19, 2012.

Rachel A. Rappazzo, Schenectady, for appellant.

James E. Conboy, District Attorney, Fonda (Jon N. Clo of counsel), for respondent.

Before: PETERS, J.P., MALONE JR., STEIN, GARRY and EGAN JR., JJ.

STEIN, J.

Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered September 1, 2010, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree (two counts) and reckless endangerment in the second degree.

Defendant was indicted on one count of reckless endangerment in the second degree and two counts of criminal possession of a weapon in the second degree. Following a jury trial, defendant was convicted as charged and sentenced to an aggregate prison term of 12 years, to be followed by five years of postrelease supervision. Defendant now appeals and we affirm.

The charges arise out of a drive-by shooting that occurred in the early morning hours of August 22, 2009, in the vicinity of Slick's Tavern in the City of Amsterdam, Montgomery County. Witnesses reported seeing two black cars drive by Slick's multiple times, each time firing at the bar and the people standing outside. A little while later, defendant was picked up by police from the Town of Glenville, Schenectady County, with two other men, including Jose Maschio. He was turned over to the Amsterdam Police Department, but was not arrested at that time. While at the police station, defendant wrote out a statement but refused to sign it. Multiple shell casings and projectiles from at least two weapons were recovered from the crime scene. However, no weapons were ever recovered, no spent shell casings were found in defendant's car and both defendant and Maschio tested negative for gunshot residue later that day.

Defendant's conviction was not against the weight of the evidence. “A person is guilty of reckless endangerment in the second degree when he [or she] recklessly engages in conduct which creates a substantial risk of serious physical injury to another person” (Penal Law § 120.20). As relevant here, a person is guilty of criminal possession of a weapon in the second degree when such person possesses a loaded firearm with intent to use the same unlawfully against another ( see Penal Law § 265.03[1][b] ) or when such possession does not take place in such person's home or place of business ( see Penal Law § 265.03[3] ). “The presence in an automobile ... of any firearm ... is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon ... is found” (Penal Law § 265.15[3] ).

[1] Here, multiple witnesses placed defendant at Slick's with Maschio, who was wearing a distinctive yellow hat, on the night of the incident. Several of those witnesses testified that an altercation occurred, after which defendant and Maschio left in a black Lexus. They further testified that they saw a black car—driven by defendant, with Maschio or someone in a yellow hat firing a weapon from within—return a half-hour later, along with a black Dodge Intrepid. Additionally, in the statement that defendant wrote out at the police station, he indicated that, after leaving Slick's, he dropped off two of his companions—not including Maschio—after which “we” returned to the bar. Defendant argues that the evidence suggests that two cars were involved, that only two guns were used and that one of those guns was stationary during the incident. Defendant also points to the testimony of witnesses who reported seeing pedestrians returning fire at the cars. Defendant contends that this evidence indicates that shots were only fired from one of the vehicles and that only the second vehicle (the Intrepid) contained physical evidence of shots having been fired from within it. Notwithstanding the absence of physical evidence of a weapon in defendant's vehicle, the jury apparently credited the testimony of the witnesses who observed shots being fired by Maschio from the vehicle driven by defendant. Even if a different verdict would not have been unreasonable, upon our own review of the evidence and “[a]ccording appropriate deference to the jury's unique opportunity to view the witnesses, hear the testimony and observe the demeanor of those individuals who testified, we do not find that its resolution of the credibility issues is against the weight of the evidence” ( People v. Luck, 294 A.D.2d 618, 619, 742 N.Y.S.2d 678 [2002], lv. denied 98 N.Y.2d 699, 747 N.Y.S.2d 417, 776 N.E.2d 6 [2002]; see People v. Romero, 7 N.Y.3d 633, 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ).

Nor are we persuaded that County Court improperly admitted the identification of defendant as a participant in the crimes by Penny Farquhar, one of the People's witnesses. Initially, we reject defendant's contention that the photographic array presented to Farquhar before trial should have been suppressed as unduly suggestive because defendant's head appeared smaller than the heads of other suspects in the array ( see People v. Smiley, 49 A.D.3d 1299, 1300, 856 N.Y.S.2d 321 [2008], lv. denied 10 N.Y.3d 870, 860 N.Y.S.2d 496, 890 N.E.2d 259 [2008]; People v. Means, 35 A.D.3d 975, 976, 824 N.Y.S.2d 821 [2006], lv. denied 8 N.Y.3d 948, 836 N.Y.S.2d 558, 868 N.E.2d 241 [2007]; People v. Boria, 279 A.D.2d 585, 586, 719 N.Y.S.2d 682 [2001], lv. denied 96 N.Y.2d 781, 725 N.Y.S.2d 645, 749 N.E.2d 214 [2001] ). We are also satisfied that County Court properly determined that an independent basis existed for Farquhar's identification of defendant. At a combined Huntley and Wade hearing held on June 2, 2010, the People failed to produce the officer who conducted the photo array identification. County Court subsequently ruled that the People had not met their burden of going forward, but did not specifically rule that the identification should be suppressed. Instead, the court scheduled an independent source hearing, sua sponte, and after the People's examination of Farquhar, found that she had an independent source and denied defendant's request to suppress her in-court identification of him.

We are of the view that, although County Court found that the People had failed to establish the reasonableness of the photo array identification procedure, inasmuch as the People offered no evidence regarding an independent source on the first day of the hearing—and the court did not determine the merits of such issue—and the second day of the hearing was limited to testimony in that regard, the conduct of a bifurcated Wade hearing did not provide the People with an opportunity to tailor the evidence and was, therefore, entirely proper ( see People v. Havelka, 45 N.Y.2d 636, 643, 412 N.Y.S.2d 345, 384 N.E.2d 1269 [1978]; People v. Gragnano, 63 A.D.3d 1437, 1439, 885 N.Y.S.2d 369 [2009], lv. denied 13 N.Y.3d 939, 895 N.Y.S.2d 329, 922 N.E.2d 918 [2010]; People v. Jonathan V., 55 A.D.3d 273, 279, 865 N.Y.S.2d 44 [2008] ). Moreover, County Court's determination that the People had established the existence of an independent source for Farquhar's...