People v. Demellier

• Decision Date: 18 July 2019
• Docket Number: 108475
• Citation: 174 A.D.3d 1120,105 N.Y.S.3d 218
• Parties: The PEOPLE of the State of New York, Respondent, v. Joshua T. DEMELLIER, Appellant.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 1120
105 N.Y.S.3d 218

The PEOPLE of the State of New York, Respondent,
v.
Joshua T. DEMELLIER, Appellant.

108475

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

Calendar Date: May 28, 2019
Decided and Entered: July 18, 2019

105 N.Y.S.3d 219

Pamela B. Bleiwas, Ithaca, for appellant, and appellant pro se.

Weeden A. Wetmore, District Attorney, Elmira (William D. VanDelinder of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Clark, Devine and Pritzker, JJ.

MEMORANDUM AND ORDER

Lynch, J.

174 A.D.3d 1120

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered July 1, 2015, upon a verdict convicting defendant of the crimes of attempted murder in the second degree, criminal use of a firearm in the first degree, assault in the second degree and assault in the third degree.

Defendant was charged in a four-count indictment with attempted murder in the second degree, criminal use of a firearm in the first degree and assault in the second degree arising from the shooting of victim A and assault in the third degree based on defendant striking victim B in the head. Following a jury trial, defendant was convicted as charged. Thereafter, defendant was sentenced to concurrent prison terms of 25 years, followed by five years of postrelease supervision, for his convictions of attempted murder in the second degree and criminal use of a firearm in the first degree, and to lesser concurrent prison terms for his remaining convictions.¹ Defendant appeals.

We affirm. Defendant argues that the verdict was against the weight of the evidence, because there was no credible evidence to identify him as the perpetrator of the crimes charged or to show that he intended to cause the death of

105 N.Y.S.3d 220

victim A. "When undertaking a weight of the evidence review, we must first determine whether, based on all the credible evidence, a

174 A.D.3d 1121

different finding would not have been unreasonable and[, if not,] then weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence. When conducting this review, we consider the evidence in a neutral light and defer to the jury's credibility assessments" ( People v. Gill, 168 A.D.3d 1140, 1140–1141, 90 N.Y.S.3d 392 [2019] [internal quotation marks and citations omitted]; see People v. Hackett, 167 A.D.3d 1090, 1091–1092, 89 N.Y.S.3d 429 [2018] ).

As relevant here, a conviction for attempted murder in the second degree requires the People to prove that, with intent to cause the death of another, the defendant engaged in conduct that tended to effect the commission of that crime (see Penal Law §§ 110.00, 125.25[1] ; People v. Greenfield, 167 A.D.3d 1060, 1061, 89 N.Y.S.3d 461 [2018], lv denied 32 N.Y.3d 1204, 99 N.Y.S.3d 245, 122 N.E.3d 1157 [2019] ). To support a conviction for criminal use of a firearm in the first degree, the People must show that the defendant committed a class B violent felony offense, such as attempted murder in the second degree (see Penal Law § 70.02[1] ), and "display[ed] what appear[ed] to be a pistol, revolver, rifle, shotgun, machine gun or other firearm" ( Penal Law § 265.09[1][b] ). To support a conviction for assault in the second degree, the People are required to prove that, "[w]ith intent to cause physical injury to another person, [the defendant] cause[d] such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument" ( Penal Law § 120.05[2] ). As to assault in the third degree, the People are required to establish that, "[w]ith intent to cause physical injury to another person, [the defendant] cause[d] such injury to such person or to a third person" ( Penal Law § 120.00[1] ).

The altercation at issue occurred around 9:00 p.m. on June 1, 2014 outside a residence on Sullivan Street in the City of Elmira, Chemung County, where defendant and the victims were attending a party. A scuffle broke out between defendant and another guest that the two victims and the homeowner attempted to stop. Hearing the commotion, the bartender at a lounge next door looked out the window and observed a man – who she identified as defendant at trial – wearing a "lime green shirt" and a "light hat with lime green trim" arguing with another man, victim B. The bartender explained that defendant walked back toward the residence, only to return and strike victim B, knocking him unconscious. She then observed defendant pointing a gun in victim B's face. The bartender explained that she could identify defendant because it was not

174 A.D.3d 1122

too dark and "his cheeks and his eyes ... stood out to [her]," as well as his shirt. Although he could not identify defendant, the bartender's brother also observed the man in a lime green shirt pointing what appeared to be a gun at victim B. Another bar patron identified defendant as wearing a...