People v. Capers

• Decision Date: 18 June 2015
• Docket Number: 105285
• Citation: 129 A.D.3d 1313,2015 N.Y. Slip Op. 05223,12 N.Y.S.3d 317
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael CAPERS, Appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1313

12 N.Y.S.3d 317

2015 N.Y. Slip Op. 05223

The PEOPLE of the State of New York, Respondent

v.Michael CAPERS, Appellant.

105285

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

June 18, 2015.

Aaron A. Louridas, Delmar, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

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

Opinion

LYNCH, J.

Appeal from a judgment of the Supreme Court (Milano, J.), rendered January 31, 2012 in Schenectady County, upon a verdict convicting defendant of the crime of criminal possession of a weapon in the second degree (two counts).

In March 2010, defendant and three cohorts were involved in a deadly altercation with a group of pedestrians on a street in the City of Schenectady, Schenectady County, during which two people, Alphonzo Pittman (hereinafter Pittman) and Virgil Terry, were fatally wounded by gunshot. Having allegedly fired a handgun into the crowd of people, defendant was charged in a multicount indictment with murder in the second degree (two counts), criminal possession of a weapon in the second degree (six counts) and reckless endangerment in the first degree (three counts). Defendant was ultimately convicted by a jury of two counts of criminal possession of a weapon in the second degree and sentenced to an aggregate prison term of 14 years, to be followed by five years of postrelease supervision. Defendant appeals.

We disagree with defendant's contention that his convictions were against the weight of the evidence.¹ As relevant here, a person is guilty of criminal possession of a weapon in the second degree where he or she intends to use a loaded firearm against another person (see Penal Law § 265.03[1][b] ) or possesses any loaded firearm outside of his or her home or business (see Penal Law § 265.03[3] ). The testimony adduced at trial established that defendant was seated in the backseat of a vehicle that slowed to a stop as Catoria Pittman, Pittman's sister, approached and began speaking with the driver, whom she knew. At the end of the conversation, defendant pointed a gun at Catoria Pittman and instructed her to back away from the vehicle. After defendant and the other three occupants—including Jalil Miles and Dashuan Terry (hereinafter Terry)—exited the vehicle, an argument ensued between Catoria Pittman, Pittman and defendant, at which point several gunshots were fired by defendant and Miles.² Terry testified that defendant was shooting into the crowd of people. Jamel Reed, an acquaintance with whom defendant was subsequently incarcerated, testified that defendant had admitted while in jail to shooting at Pittman. Pittman's cousin and girlfriend both reportedly witnessed the argument and heard the consequent gunshots, although neither could say whether defendant was the shooter. While no weapon was found, a police detective later recovered eight 9 millimeter shell casings from the crime scene, and a firearms examiner testified that the casings were fired from at least two different guns.

Here, two eyewitnesses—Terry and Catoria Pittman—directly implicated defendant in the shootings, while a third witness testified to defendant's pretrial admission (see People v. Mercado, 113 A.D.3d 930, 932, 978 N.Y.S.2d 449 [2014], lv. denied 23 N.Y.3d 1040, 993 N.Y.S.2d 253, 17 N.E.3d 508 [2014] ). Contrary to defendant's contention, we are not obligated to reject the testimony of Terry and Reed on the basis that they accepted favorable plea deals in exchange for testifying against defendant, especially given that these arrangements were fully explored at trial (see People v. Novick, 126 A.D.3d 1134, 1135, 5 N.Y.S.3d 574 [2015] ; People v. Mercado, 113 A.D.3d at 932, 978 N.Y.S.2d 449 ). In addition, the veracity of Catoria Pittman's account, in light of her relation to Pittman and her incomplete grand jury testimony,³ was a credibility determination properly left to the jury (see People v. Romero, 7 N.Y.3d 633, 645, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ; People v. Wingo, 103 A.D.3d 1036, 1037, 962 N.Y.S.2d 422 [2013], lv. denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013] ). The physical evidence of the shootings and defendant's escalation of the dispute—when considered in conjunction with this testimony—provided ample support for the conclusion that he—acting either as a principal or as an accomplice—intended to unlawfully use a loaded gun against another person (see People v. Miles, 119 A.D.3d 1077, 1079, 990 N.Y.S.2d 141 [2014], lvs. denied 24 N.Y.3d 1003, 997 N.Y.S.2d 121, 122, 21 N.E.3d 573, 574 [2014] ; People v. Francis, 83 A.D.3d 1119, 1121–1122, 922 N.Y.S.2d 581 [2011], lv. denied 17 N.Y.3d 806, 929 N.Y.S.2d 565, 953 N.E.2d 803 [2011] ). Furthermore, “[i]t is uncontested that the shootings occurred outside on a street” (People v. Miles, 119 A.D.3d at 1079, 990 N.Y.S.2d 141 ). Although a different outcome would not have been unreasonable, viewing the evidence in a neutral light and according appropriate deference to the jury's credibility determinations, we find that defendant's convictions were not against the weight of the evidence (see People v. Valverde, 122 A.D.3d 1074, 1075–1077, 996 N.Y.S.2d 772 [2014] ; People v. Maschio, 117 A.D.3d 1234, 1236, 986 N.Y.S.2d 252 [2014] ).

Next, defendant argues that County Court (Drago, J.) erred in denying his motion to suppress a photo array identification. We disagree. Here, a photograph of defendant that was taken during a juvenile delinquency proceeding and which should have been destroyed pursuant to Family Ct. Act § 354.1(2) was used in a photo array shown to Catoria Pittman. Defendant's contentions that the misuse of this photograph deprived him of due process and that the court erred in refusing to examine how the police obtained the photograph are not persuasive. “[A]lthough the statutorily conferred right to the return [or destruction] of one's photograph serves important purposes and protects important interests, the infringement of that right does not implicate constitutional considerations such as to require the sanction of suppression” (People v. Patterson, 78 N.Y.2d 711, 716, 579 N.Y.S.2d 617, 587 N.E.2d 255 [1991] ; see People v. Greene, 9 N.Y.3d 277, 280, 849 N.Y.S.2d 461, 879 N.E.2d 1280 [2007] ; Matter of Quadon H., 55 A.D.3d 834, 835, 866 N.Y.S.2d 693 [2008] ). In any event, defendant suffered no prejudice, as there was no assertion that the photograph was unduly suggestive and the People followed Supreme Court's instruction not to discuss the photo array at trial.

The People's failure to disclose two statements that indicated that Terry shot both victims did not deprive defendant of a fair trial. Defendant preserved this argument for review by raising this issue before Supreme Court upon his discovery of these statements in the presentence investigation report (see People v. Ennis, 11 N.Y.3d 403, 414 n. 2, 872 N.Y.S.2d 364, 900 N.E.2d 915 [2008], cert. denied556 U.S. 1240, 129 S.Ct. 2383, 173 L.Ed.2d 1301 [2009] ). “ ‘To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material’ ” (People v. Lewis, 125 A.D.3d 1109, 1110, 3 N.Y.S.3d 454 [2015], quoting People v. Fuentes, 12 N.Y.3d 259, 263, 879 N.Y.S.2d 373, 907 N.E.2d 286 [2009] ). Since defendant was not convicted of murder in the second degree—the charges to which this allegedly exculpatory material relates—we perceive no prejudice from the nondisclosure relative to those charges (compare People v. Mitchell, 55 A.D.3d 1048, 1050, 865 N.Y.S.2d 396 [2008], lv. denied 12 N.Y.3d 856, 881 N.Y.S.2d 668, 909 N.E.2d 591 [2009] ; People v. Pittman, 33 A.D.3d 1118, 1120, 823 N.Y.S.2d 256 [2006] ). While arguably relevant for purposes of impeaching Terry, in view of the overall evidence implicating defendant, there is no reasonable probability that the disclosure of these statements would have resulted in a different outcome (see People v. Garrett, 23 N.Y.3d 878, 891, 994 N.Y.S.2d 22, 18 N.E.3d 722 [2014] ; People v. Page, 115 A.D.3d 1067, 1068, 982 N.Y.S.2d 188 [2014], lv. dismissed 23 N.Y.3d 966, 988 N.Y.S.2d 573, 11 N.E.3d 723 [2014] ).

Supreme Court did not err in admitting testimony regarding a prior altercation between defendant and his friends and Pittman's group of friends. Defendant's contention in this regard was preserved by his timely objection at trial (see People v. Williams, 89 A.D.3d 1222, 1224, 932 N.Y.S.2d 256 [2011], lv. denied 18 N.Y.3d 887, 939 N.Y.S.2d 757, 963 N.E.2d 134 [2012] ; People v. Tyrell, 82 A.D.3d 1352, 1355–1356, 918 N.Y.S.2d 636 [2011], lvs. denied 17 N.Y.3d 808, 810, 929 N.Y.S.2d 570, 953 N.E.2d 808 [2011] ). Although prior bad acts are inadmissible to demonstrate criminal propensity, they are admissible to show, among other things, a defendant's motive and intent for committing the charged crimes (see People v. Morris, 21 N.Y.3d 588, 594, 976 N.Y.S.2d 682, 999 N.E.2d 160 [2013] ; People v. Alnutt, 107 A.D.3d 1139, 1142, 968 N.Y.S.2d 634 [2013], lv. denied 22 N.Y.3d 1136, 983 N.Y.S.2d 495, 6 N.E.3d 614 [2014] ). Reed testified that defendant was involved in a fistfight with a friend of Pittman following a high school football game just six months before the instant shootings. The fight eventually escalated into a large brawl, engendering animosity between the two groups. The account of this altercation was certainly probative of defendant's motive and intent for shooting at Pittman (see People v. Tyrell, 82 A.D.3d at 1356, 918 N.Y.S.2d 636 ; People v. Tatro, 53 A.D.3d 781, 785, 862 N.Y.S.2d 154 [2008], lv. denied 11 N.Y.3d 835, 868 N.Y.S.2d 610, 897 N.E.2d 1094 [2008] ). Moreover, the court's exclusion of testimony concerning gang-related gun violence that was precipitated by the brawl reflects a “measured effort to...