People v. Davidson

• Court: New York Supreme Court Appellate Division
• Citation: 150 A.D.3d 1142,55 N.Y.S.3d 357
• Parties: The PEOPLE, etc., respondent, v. Wayne DAVIDSON, appellant.
• Decision Date: 24 May 2017

150 A.D.3d 1142
55 N.Y.S.3d 357

The PEOPLE, etc., respondent,
v.
Wayne DAVIDSON, appellant.

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

May 24, 2017.

55 N.Y.S.3d 358

Leon H. Tracy, Jericho, NY, for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Lori Glachman of counsel), for respondent.

MARK C. DILLON, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

Appeals by the defendant (1) from a judgment of the Supreme Court, Kings County (Chun, J.), rendered March 4, 2009, convicting him of murder in the second degree and attempted murder in the second degree, upon a jury verdict, and imposing sentence, and (2), by permission, from an order of the same court dated May 10, 2012, which denied, after a hearing, his motion pursuant to CPL 440.10 to vacate the judgment of conviction.

ORDERED that the judgment and the order are affirmed.

On June 20, 2002, in front of a crowd of people, Bakeem Townsel (hereinafter Bakeem) twice beat up the defendant for "disrespecting" Bakeem's mother, Audrey Townsel (hereinafter Audrey). Thereafter, the defendant's girlfriend, Francine Garnett, sought help from her nephew Michael Ortiz to get revenge. Ortiz, in turn, rallied his friends, the codefendant Billy Mazyck, Arthur Alston, and David Hardman,

55 N.Y.S.3d 359

and, together with the defendant and Garnett, they devised a plan to shoot Bakeem. That night, the defendant and his accomplices went to Audrey's apartment in Coney Island, where Bakeem was staying. The men waited in the stairwell while Garnett knocked on the door and, as planned, the others emerged from the stairwell into the hall once the door was opened. Seven shots were fired into the apartment, one fatally striking Audrey in the back, and another passing through Bakeem's left knee. The evidence adduced at trial established that the bullets fired came from two guns, and that one gun was fired by Hardman. It is undisputed that the defendant was at no time in possession of a gun.

The defendant was convicted of murder in the second degree and attempted murder in the second degree under an acting-in-concert theory.

The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review, as defense counsel failed to specify, in his general motion to dismiss the indictment, the arguments he raises now (see CPL 470.05[2] ; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ; People v. Mazyck, 118 A.D.3d 728, 729, 987 N.Y.S.2d 95 ). With regard to the credibility of Alston, the prosecution's main and crucial witness, we addressed the issue in (People v. Mazyck, 118 A.D.3d 728, 987 N.Y.S.2d 95 ), on the codefendant's appeal: "The criminal and unsavory background of Alston ... and his having testified pursuant to a cooperation agreement, as well as his misrepresentations to the police and court both before and after his plea of guilty, were matters fully explored at trial and merely ‘raised an issue of credibility which the jury resolved in favor of the prosecution’ (People v. Harris, 276 A.D.2d 562, 562–563, 714 N.Y.S.2d 244 [2000] ; see People v. Bernard, 100 A.D.3d 916, 916–917, 954 N.Y.S.2d 209 [2012] ; People v. Chin, 69 A.D.3d [752,] 752–753, 897 N.Y.S.2d 106 ; People v. Torres, 47 A.D.3d 851, 852, 850 N.Y.S.2d 529 [2008] ; People v. Smith, 302 A.D.2d 615, 616, 756 N.Y.S.2d 255 [2003] ), which it was entitled to do" (People v. Mazyck, 118 A.D.3d at 729, 987 N.Y.S.2d 95 ). Alston's account of the events of June 20, 2002, was internally consistent and in accord with the physical evidence and, moreover, sufficiently corroborated by the testimony of four nonaccomplice eyewitnesses (see People v. Reome, 15 N.Y.3d 188, 191–192, 906 N.Y.S.2d 788, 933 N.E.2d 186 ; People v. Breland, 83 N.Y.2d 286, 294, 609 N.Y.S.2d 571, 631 N.E.2d 577 ; People v. Daniels, 37 N.Y.2d 624, 629, 376 N.Y.S.2d 436, 339 N.E.2d 139 ).

The hearing court did not improvidently exercise its discretion...