People v. Calafell

• Decision Date: 01 December 2022
• Docket Number: 112230
• Citation: 211 A.D.3d 1114,179 N.Y.S.3d 427
• Parties: The PEOPLE of the State of New York, Respondent, v. Tarell L. CALAFELL, Appellant.
• Court: New York Supreme Court — Appellate Division

211 A.D.3d 1114

179 N.Y.S.3d 427

The PEOPLE of the State of New York, Respondent,

v.Tarell L. CALAFELL, Appellant.

112230

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

Calendar Date: October 18, 2022

Decided and Entered: December 1, 2022

Adam H. Van Buskirk, Auburn, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Nathan M. Bloom of counsel), for respondent.

Before: Garry, P.J., Lynch, Reynolds Fitzgerald, Ceresia and McShan, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Appeal from a judgment of the County Court of Chemung County (Christopher P. Baker, J.), rendered August 19, 2019, upon a verdict convicting defendant of the crimes of attempted assault in the first degree, criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the third degree.

Defendant was charged in an August 2018 indictment with attempted murder in the second degree, attempted assault in the first degree, criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the third degree. The charges stemmed from allegations that on July 26, 2018, as defendant was walking down a street in the City of Elmira, Chemung County he was pursued and shot at by another man. After firing his weapon at defendant, the man fled. In turn, defendant gave chase and fired several shots at him. Neighbors called 911 and police located defendant – who matched the description of one of the suspects in the shooting – a few blocks away. Following a jury trial, defendant was acquitted of attempted murder in the second degree but was convicted of all remaining charges. County Court sentenced defendant, as a second felony offender, to a prison term of 15 years with five years of postrelease supervision on the attempted assault conviction and to equal or lesser concurrent terms on the remaining convictions. Defendant appeals.

Defendant challenges the verdict as unsupported by legally sufficient evidence and against the weight of the evidence, arguing both that the People failed to establish his identity as the shooter beyond a reasonable doubt and that they failed to prove that he had the requisite intent to commit the crime of attempted assault in the first degree. "In conducting a legal sufficiency analysis, this Court views the evidence in the light most favorable to the People and evaluates whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" ( People v. Warner, 194 A.D.3d 1098, 1099, 147 N.Y.S.3d 234 [3d Dept. 2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 1030, 153 N.Y.S.3d 412, 175 N.E.3d 438 [2021] ; see People v. Terry, 196 A.D.3d 840, 841, 149 N.Y.S.3d 705 [3d Dept. 2021], lv denied 37 N.Y.3d 1030, 153 N.Y.S.3d 432, 175 N.E.3d 457 [2021] ). "To determine whether a verdict is against the weight of the evidence, this Court must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and, if not, then weigh the relative probative force of conflicting testimony and the relative strength of the conflicting inferences that may be drawn from the testimony" ( People v. Serrano, 200 A.D.3d 1340, 1342, 158 N.Y.S.3d 389 [3d Dept. 2021] [internal quotation marks and citations omitted], affd 38 N.Y.3d 1180, 174 N.Y.S.3d 686, 195 N.E.3d 520 [2022] ; People v. Barzee, 190 A.D.3d 1016, 1017–1018, 138 N.Y.S.3d 718 [3d Dept. 2021], lv denied 36 N.Y.3d 1094, 144 N.Y.S.3d 110, 167 N.E.3d 1245 [2021] ).

As relevant here, a conviction for attempted assault in the first degree requires proof that the defendant acted with the intent to cause serious physical injury to another person (see Penal Law §§ 110.00, 120.10[1] ). "Criminal intent may be inferred from the totality of the circumstances or from the natural and probable consequences of the defendant's conduct" ( People v. Conway, 179 A.D.3d 1218, 1219, 116 N.Y.S.3d 118 [3d Dept. 2020] [internal quotation marks, ellipsis, brackets and citations omitted], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 288, 147 N.E.3d 558 [2020] ; see People v. Pine, 126 A.D.3d 1112, 1114, 4 N.Y.S.3d 746 [3d Dept. 2015], lv denied 27 N.Y.3d 1004, 38 N.Y.S.3d 113, 59 N.E.3d 1225 [2016] ). As relevant to count 3 of the indictment, "[a] person is guilty of criminal possession of a weapon in the second degree when[,] ... with intent to use the same unlawfully against another, such person ... possesses a loaded firearm" ( Penal Law § 265.03[1][b] ). Pursuant to Penal Law § 265.03(3), in order to find a person guilty of criminal possession of a weapon in the second degree (count 4), the People must establish that he or she possessed a loaded firearm outside of his or her home or place of business. For a conviction of criminal possession of a weapon in the third degree, the People must prove that the defendant, having previously been convicted of a crime, committed the offense of criminal possession of a weapon in the fourth degree (see Penal Law § 265.02[1] ), which requires, as relevant here, proof that defendant knowingly possessed a firearm (see Penal Law § 265.01[1] ).

At trial, an individual who lived on the street where the shooting took place testified that he heard an initial gunshot, and then, after a short period, he heard another set of gunshots. He looked out his window and saw a tall, skinny, dark male wearing dark clothing running down the street. Simultaneously, he saw another individual, whom he described as a little bit stockier and wearing a white tank top, take several steps toward the fleeing person, raise a semi-automatic firearm at the individual who was running away, fire the weapon three to five times and then run off in the opposite direction. A second eyewitness testified similarly, adding that he had subsequently discovered a bullet hole in the wall of his house. Video footage from a security camera located at a house on the street where the shooting occurred corroborated the eyewitness accounts of the shooting.

A police officer with the Elmira Police Department (hereinafter EPD), testified that he was responding to a call for shots fired when information relayed over the radio indicated a subject wearing blue jeans and a white tank top was running toward him. When the officer saw defendant, who matched this description, he stopped and detained him until another officer could handcuff him. A second police officer – an evidence technician with the EPD – testified that he was dispatched to the scene and collected a water bottle, a cell phone, four 9 millimeter shell casings, a Springfield Armory XD 9 millimeter semi-automatic pistol and a projectile located in the wall of a home near where the incident allegedly happened. An investigator and firearms instructor with the EPD testified that he interviewed defendant. He confirmed that defendant was wearing blue jeans and a white tank top and that he obtained a DNA sample from defendant. The investigator further testified that he test-fired the pistol found at the scene of the shooting – the Springfield Armory XD 9 millimeter – and deemed the gun operable. Additionally, he testified that both a bullet and a separate bullet hole were found in the house next to where defendant fell down and that the evidence demonstrated that these both came from the direction where the other subject was standing. The investigator also explained that shell casings are automatically ejected from a semi-automatic firearm when the firearm is shot, whereas casings from a revolver remain inside of the firearm. Based on this ballistic evidence, it was evident that two weapons were used in the shooting.

A forensic scientist firearm examiner at the State Police forensic investigation center corroborated this finding. She averred that she examined the gun, magazine, shell casings and projectiles found at or near the scene of the shooting. She stated that, after examination and testing, it was her finding that the bullet that was pulled from the wall of a house was in the same class and had the same class characteristics as the Springfield pistol, but that she could not state definitively that it had come from the gun in question. She could, however, identify the casings found at the scene as coming from that specific gun. Finally, she identified the other bullet found in the driveway at the scene as more consistent with a .357 or a .38 caliber bullet. An employee of the State Police forensic investigation center testified that he performed DNA analysis on the water bottle found at the site of the shooting and opined to a reasonable degree of scientific certainty that the DNA profile from the water bottle matched the profile from defendant's DNA sample.

As to the conviction for attempted assault in the first degree, the evidence is legally sufficient to support this conviction. The eyewitnesses and video footage clearly depict defendant standing up after he was shot at, taking several steps in the direction of the then-fleeing man and firing several shots at him. Although the video does not contain any audio, the eyewitnesses testified that they heard shots being fired after defendant stood up and moved toward the fleeing man. Contrary to defendant's contention, his intent can be readily inferred from his conduct in taking several steps toward and shooting at the fleeing man "from a relatively short distance while the [other subject] was in the process of retreating" ( People v. Warner, 194 A.D.3d 1098, 1104, 147 N.Y.S.3d 234 [3d Dept. 2021], lv denied 37 N.Y.3d 1030, 153 N.Y.S.3d 412, 175 N.E.3d 438 [2021] ). When "[v]iewed in the light most favorable to the People, we find that this evidence presented a valid line of reasoning and permissible inferences from which a rational juror...