People v. Brown

• Decision Date: 06 December 2007
• Docket Number: 15960.
• Citation: 846 N.Y.S.2d 752,2007 NY Slip Op 09630,46 A.D.3d 949
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KHAREEM D. BROWN, Appellant.
• Court: New York Supreme Court — Appellate Division

46 A.D.3d 949

846 N.Y.S.2d 752

2007 NY Slip Op 09630

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KHAREEM D. BROWN, Appellant.

15960.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided December 6, 2007.

Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered November 3, 2004, upon a verdict convicting defendant of the crimes of murder in the second degree, attempted murder in the second degree and criminal possession of a weapon in the second degree.

Mugglin, J.

Defendant entered a crowded nightclub in the City of Binghamton, Broome County, and confronted Floyd Ash, who was then in a relationship with defendant's former girlfriend. According to the prosecution, a fight ensued during which defendant drew a handgun and shot Ash in the upper leg and Daniel England, a bystander, in the abdomen. England later died from the wound. Following a jury trial of the indictment which, among other things, charged defendant with both intentional murder and depraved indifference murder, defendant was convicted of intentional murder in the second degree, attempted murder in the second degree and criminal possession of a weapon in the second degree. County Court, thereafter, sentenced defendant as a second felony offender to concurrent prison terms of 23 years to life on the murder in the second degree conviction, 20 years, with five years of postrelease supervision, on the conviction for attempted murder in the second degree, and 10 years, with five years of postrelease supervision, on the conviction for criminal possession of a weapon in the second degree. On this appeal, defendant's counsel argues that (1) in court identification testimony should not have been allowed, (2) there was insufficient evidence to convict defendant of murder in the second degree, or in the alternative, that this conviction is against the weight of the evidence, and (3) defendant's sentence was harsh and excessive. In a pro se supplemental brief, defendant argues that he received ineffective assistance of counsel. We are unpersuaded and affirm.

Initially, we discern no error in allowing the prosecution's identification testimony at trial. Identification evidence regarding an accused is admissible at trial if the identification procedures, including the geographic and temporal proximity to the crime, are reasonable and not unduly suggestive (see People v Starks, 37 AD3d 863, 865 [2007]; People v Jiminez, 36 AD3d 962, 965 [2007], lv denied 8 NY3d 947 [2007]). Defendant's argument that the identification witnesses were unreliable— because each was either incarcerated, awaiting trial or had already been convicted and was seeking leniency and had motive and opportunity to collude concerning their testimony—while providing fertile ground for cross-examination did not impact the admissibility of their testimony (see People v Russell, 41 AD3d 1094, 1095 [2007]) nor the propriety of the identification procedures (see People v Bailey, 162 AD2d 885, 886-887 [1990], lv denied 77 NY2d 836 [1991]). In short, defendant's arguments do not challenge the admissibility of such evidence, only the weight that it should be given.

Next, defendant's assertion that his conviction for murder in the second degree is not supported by legally sufficient evidence or is against the weight of the evidence is based on the claimed lack of credibility of the witnesses against him. However, the fact that a witness may have charges pending against him or her at the time of testimony or has agreed to testify in the hope of receiving a favorable plea agreement does not render the testimony of that witness incredible as a matter of law (see People v Russell, 41 AD3d at 1095-1096; People v Moore, 17 AD3d 786, 789 [2005], lv denied 5 NY3d 792 [2005]). Viewing the evidence in the light most favorable to the People, we conclude that the evidence was legally sufficient to support defendant's conviction of intentional murder (see People v McKnight, 306 AD2d 546, 547 [2003], lv denied 100 NY2d 596 [2003]). The surviving victim testified that during the altercation between himself and defendant, defendant drew a gun and discharged it twice. Other witnesses testified that defendant admitted getting into the fight and discharging his weapon twice. Following the incident, defendant left the gun at the residence of another individual and fled to Florida. Defendant's admissions to third parties, together with the circumstantial evidence, are legally sufficient to support the jury's verdict.

Alternatively, defendant contends that the verdict is against the weight of the evidence. Although defendant testified in his own behalf that one of the victims...