People v. Burnell

• Citation: 89 A.D.3d 1118,2011 N.Y. Slip Op. 07742,931 N.Y.S.2d 776
• Parties: The PEOPLE of the State of New York, Respondent,v.Hashim BURNELL, Appellant.
• Decision Date: 03 November 2011
• Court: New York Supreme Court Appellate Division

89 A.D.3d 1118
931 N.Y.S.2d 776
2011 N.Y. Slip Op. 07742

The PEOPLE of the State of New York, Respondent,
v.
Hashim BURNELL, Appellant.

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

Nov. 3, 2011.

[931 N.Y.S.2d 777]

Mischel & Horn, P.C., New York City (Richard E. Mischel of counsel), for appellant.P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.Before: PETERS, J.P., SPAIN, LAHTINEN, STEIN and EGAN JR., JJ.EGAN JR., J.

[89 A.D.3d 1118] Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered November 15, 2006, upon a verdict convicting defendant of the crimes of murder in the first degree and robbery in the first degree (three counts).

Defendant was indicted and charged with murder in the first degree, two counts of murder in the second degree and three counts of robbery in the first degree. The charges stemmed from an incident that occurred on May 5, 2005, during the course of which defendant, then two weeks shy of his 20th birthday and while on parole from a prior felony conviction, allegedly robbed and fatally wounded Todd Pianowski (hereinafter the victim) and robbed the victim's girlfriend, Lauren Parker, at gunpoint in the apartment the victim and Parker shared in the Town of Guilderland, Albany County. Although the People's first attempt to prosecute defendant ended in a mistrial, a second trial ensued and, at the conclusion thereof, a jury convicted defendant of murder in the first degree and three counts of robbery in the first degree. Defendant thereafter was sentenced as a second felony offender to, among other things, life imprisonment without the possibility of parole upon his conviction for murder in the first degree. This appeal by defendant ensued.

Defendant initially contends that the verdicts are not supported[89 A.D.3d 1119] by legally sufficient evidence and, further, are against the weight of the evidence—arguing primarily that there is insufficient evidence to identify him as the perpetrator. We disagree.

Parker testified that upon arriving at her apartment shortly after 2:00 P.M. on the afternoon in question, she encountered a man, whom she unequivocally identified at trial as defendant, standing in the kitchen and fiddling with a yellow plastic bag from a local grocery store. Almost immediately, defendant put a handgun to her head and demanded that she give him everything in the apartment—a reference she understood to mean any cash or drugs that might be present. Parker noticed the victim lying face down on the living room floor and, as she bent down to retrieve the demanded items from underneath a futon, observed blood on the victim's body. Defendant pointed to the victim and stated, “[D]o you see him[?] [D]o you see what he got for owing me [$1,500?]” Defendant then picked up the yellow grocery store bag, escorted Parker from the apartment and, while waiting for the elevator, went through her purse and removed her cash and identification. Parker estimated that she observed defendant—face to face and in good lighting—for approximately 5 to 10 minutes and thereafter provided a detailed physical description of her assailant to the police. Parker's description matched defendant's general characteristics, as well as the clothing he was photographed wearing when he was arrested approximately eight hours later—including the large, square diamond earrings previously described by Parker.

[931 N.Y.S.2d 778]

In addition to the foregoing, police subsequently recovered a backpack that defendant left with a friend on the day of the crimes, which contained, among other things, a yellow plastic grocery bag, a box of .40 caliber ammunition, a woman's purse and a small travel bag. Parker testified that she last saw the purse, which belonged to her, and the black travel bag, which belonged to the victim, under the futon when she left the apartment on the morning in question. Additionally, a firearms examiner testified that the .40 caliber bullets recovered at the scene were the same style of bullet, i.e., the same flat-nose bullet with the same jacketing material, as those contained in the box of ammunition and, further, that the expended shell casings recovered at the scene bore the same manufacturer's stamp as those present in the box of ammunition found in the backpack linked to defendant.¹ Moreover, defendant's fingerprints were discovered on a coffee table...