People v. Byrd

• Decision Date: 09 December 2010
• Citation: 912 N.Y.S.2d 318,79 A.D.3d 1256
• Parties: The PEOPLE of the State of New York, Respondent, v. Alex BYRD, Appellant.
• Court: New York Supreme Court — Appellate Division

912 N.Y.S.2d 318 79 A.D.3d 1256 The PEOPLE of the State of New York, Respondent, v. Alex BYRD, Appellant. Supreme Court, Appellate Division, Third Department, New York. Dec. 9, 2010.

Andrew Kossover, Public Defender, Kingston (Mari Ann Connolly Sennett of counsel), for appellant.

Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: ROSE, J.P., LAHTINEN, STEIN, McCARTHY and GARRY, JJ.

GARRY, J.

Appeal from a judgment of the County Court of Ulster County (McGrath, J.), rendered June 2, 2008, upon a verdict convicting defendant of the crime of reckless endangerment in the second degree.

In May 2007, defendant, accompanied by two women, drove his vehicle to a location in the City of Kingston, Ulster County, where he planned to meet two men to purchase marihuana from them. After these two got into the vehicle, a third man (hereinafter the victim) appeared on the scene and pulled defendant out of the vehicle. A struggle ensued during which a gun was discharged. Defendant later testified that the gun was the victim's and that defendant took it away as they fought. An eyewitness who called 911 testified that, after the physical altercation ended, defendant fired shots in the victim's direction. Shortly thereafter, a police officer confronted defendant nearby, seized the gun and arrested defendant.

Defendant was indicted on two counts of criminal possession of a weapon in the second degree and one count each of criminal possession of a weapon in the third degree and reckless endangerment in the first degree. At the conclusion of trial on these charges, County Court instructed the jury on the defenseof justification and the lesser included offense of reckless endangerment in the second degree. Defendant was convicted of reckless endangerment in the second degree only and was sentenced to one year in jail. He now appeals, claiming that the verdict was not supported by the weight of the evidence.

Upon review we must first determine whether, based on the credible evidence, a different verdict would have been unreasonable ( see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]; People v. Jackson, 302 A.D.2d 748, 749, 757 N.Y.S.2d 114 [2003], lv. denied 100 N.Y.2d 539, 763 N.Y.S.2d 5, 793 N.E.2d 419 [2003] ). Defendant asserts that the evidence does not establish that he acted in a manner that created a substantial risk of serious physical injury to anyone ( see Penal Law § 120.20). He testified that the gun's initial discharge happened accidentally as he and the victim struggled for the gun. After the altercation ended, defendant testified that the victim demanded that defendant return the gun and approached defendant. Defendant then alleges that he fired warning shots which were not aimed at the victim and could not have hit anyone else, as the streets were empty, the local businesses were closed, and defendant's vehicle was no longer in the vicinity.

A different verdict would not have been unreasonable based on this evidence. Accordingly, we "must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Bush, 75 A.D.3d 917, 919, 905 N.Y.S.2d 699 [2010] [internal quotation marks and citations omitted] ). Reckless endangermentin the second degree requires proof of reckless conduct which creates a substantial risk of serious physical injury ( see Penal Law § 120.20; People v. Perniciaro, 58 N.Y.2d 751, 753, 459 N.Y.S.2d 20, 445 N.E.2d 196 [1982] ). A finding that defendant aimed the gun directly at anyone is not required, since bullets may ricochet or persons in the vicinity of gunfire may move unexpectedly into its path ( compare People v. Graham, 14 A.D.3d 887, 889, 787 N.Y.S.2d 742 [2005], lv. denied 4 N.Y.3d 853, 797 N.Y.S.2d 427, 830 N.E.2d 326 [2005] ). For this reason, evidence that a defendant fired a gun near another person has been found adequate to meet the more stringent requirement of establishing that a defendant "engage[d] in conduct which creates a grave risk of death to another person" for purposes of reckless endangerment in the first degree (Penal Law § 120.25; see People v. Menard, 113 A.D.2d 972, 973, 493 N.Y.S.2d 643 [1985], lv. denied 68 N.Y.2d 772, 506 N.Y.S.2d 1056, 498 N.E.2d 158 [1986] ). Further, "close proximity" between the defendant and the victim is not required ( People v. Jerome, 138 A.D.2d 871, 872, 525 N.Y.S.2d 975 [1988] ).

The eyewitness testified that just before defendant fired the shots, he and the victim were 5 to 10 feet apart, walking up thestreet and shouting at each other. Although the witness could not see the victim at the moment the shots were fired, he testified that def...