People v. Gilmore

• Decision Date: 09 December 2021
• Docket Number: 110112, 110454, 112380
• Parties: The PEOPLE of the State of New York, Respondent, v. Dale GILMORE, Also Known as Copo, Appellant.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 1184
157 N.Y.S.3d 617

The PEOPLE of the State of New York, Respondent,
v.
Dale GILMORE, Also Known as Copo, Appellant.

110112, 110454, 112380

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

Calendar Date: October 12, 2021
Decided and Entered: December 9, 2021

157 N.Y.S.3d 620

Danielle Neroni Reilly, Albany, for appellant, and appellant pro se.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Garry, P.J., Lynch, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeals (1) from a judgment of the Supreme Court (Hogan, J.), rendered January 17, 2018 in Schenectady County, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree (two counts), reckless endangerment in the second degree and obstructing governmental administration in the second degree, and (2) by permission, from two orders of said court, entered June 26, 2018 and April 22, 2020 in Schenectady County, which denied defendant's motions pursuant to CPL 440.10 to vacate the judgment of conviction, without hearings.

157 N.Y.S.3d 621

On January 19, 2017, the City of Schenectady Police Department began investigating a report from the victim that her boyfriend – defendant – had fired a gun at her during an altercation at her apartment. Defendant ran from police on two occasions following the incident and, several weeks later, was arrested at an apartment in the City of Cohoes, Albany County. In connection therewith, defendant was charged by indictment with two counts of criminal possession of a weapon in the second degree, one count of reckless endangerment in the first degree and one count of obstructing governmental administration in the second degree. Following a jury trial, at which defendant was represented by counsel, he was convicted of two counts of criminal possession of a weapon in the second degree, one count of reckless endangerment in the second degree – as a lesser included offense of reckless endangerment in the first degree – and one count of obstructing governmental administration in the second degree. Defendant opted to proceed pro se at sentencing and was sentenced, as a second felony offender, to concurrent prison terms of 15 years, with five years of postrelease supervision, for each weapon possession conviction and to lesser terms of incarceration on the remaining convictions.

Thereafter, defendant made two CPL 440.10 motions to vacate the judgment of conviction,¹ alleging, among other things, ineffective assistance of counsel, actual innocence and a Brady violation. Both motions were denied without a hearing. Defendant appeals from the judgment of conviction and, by permission of this Court, from the orders denying his CPL article 440 motions.

On the direct appeal, defendant contends that the verdict on the weapon possession counts is not supported by legally sufficient evidence and is against the weight of the evidence. To establish the weapon possession counts as charged in the indictment, "the People were required to prove that defendant possessed a loaded firearm in a place other than his home or business" ( People v. Hawkins, 110 A.D.3d 1242, 1242, 973 N.Y.S.2d 437 [2013], lv denied 22 N.Y.3d 1041, 981 N.Y.S.2d 374, 4 N.E.3d 386 [2013] ; see Penal Law §§ 265.01[1] ; 265.02[1]; 265.03[3]), and possessed a loaded firearm "with intent to use the same unlawfully against another" ( Penal Law § 265.03[1][b] ).

At trial, the People entered into evidence a recording of the victim's 911 call on January 19, 2017 at 6:12 a.m., in which she informed the dispatcher that she was in the attic of her apartment because her "babyfather" – whom she identified as defendant – had fired a pistol at her during an argument. The victim believed that defendant was aiming for her leg and informed the dispatcher that he had left the apartment with friends. At trial, the victim testified about the circumstances precipitating the 911 call, explaining that she had confronted defendant about an alleged affair while they were in his car – a blue Nissan Maxima – and they began to argue. Once they returned to the victim's apartment, the argument turned physical, with the victim testifying that defendant pushed her against a window, causing her to spit up blood. According to the victim, at some point during their argument defendant pulled out a black semiautomatic pistol and shot it next to her "near the ground," estimating that he was within 10 to 15 feet from her. The victim recounted that defendant

157 N.Y.S.3d 622

then left the apartment, got back into the Nissan Maxima and drove off with friends.

Three police officers – Sara McDonald, Komieko Mosher and Matthew LaPointe – proceeded to the victim's apartment in response to the 911 call, where they found her in an "agitated" state. MacDonald testified that the apartment was in disarray, with drawers pulled out and items strewn about the floor. Although the officers located a shell casing in a pile of clothing, they did not locate a handgun or observe bullet holes in the apartment. A police detective testified that the expended shell casing was of a ".22 caliber, long rifle caliber marked R-e-m for Remington," explaining that shell casings from semiautomatic firearms are ejected automatically when the firearm is shot, whereas casings from revolvers remain inside of the firearm upon discharge. He noted that bullets for .22 caliber firearms are "relatively small" and observed that, if the bullet had gone into the carpet, "it could have been concealed by the fabric." One of the officers checked with a neighbor, who confirmed that he had not heard any loud noises around the time of the incident.

MacDonald and Mosher testified that, while they were at the victim's apartment, she became uncooperative, kept looking down at her phone, refused to answer questions and declined to go to the police station. The victim conceded as much at trial, testifying that, while the officers were at the apartment, she and defendant were texting each other and defendant "was telling [her] not to say [any]thing." After the police officers left the victim's apartment, she met defendant around the corner and got into the front passenger seat of the Nissan Maxima.

The People also presented evidence that, around 9:20 a.m. on the date of the incident, officers with the City of Schenectady Police Department spotted a blue Nissan Maxima and, when they attempted to pull it over, the driver and a back seat passenger ran. The victim, who was in the vehicle, confirmed that defendant was the individual who ran from the driver seat, evading apprehension. A few weeks later, on the evening of February 4, 2017, Robert Piazza – an officer with the City of Cohoes Police Department – observed a vehicle fail to signal a turn on two occasions. When Piazza pulled the vehicle over, the driver stepped out but fled. Shining his flashlight, Piazza was able to see the driver's face and identified him at trial as defendant. Defendant was eventually apprehended at an apartment in Cohoes, where he was present with the victim and provided police with a false name.²

The People also submitted evidence that the victim and a contact in her phone named "BD" – whom the victim confirmed at trial was defendant – had exchanged text messages following the incident. At 6:17 a.m. on January 19, 2017, "BD" texted the victim, "Don't say nothing" and at 6:20 a.m. – after the victim placed her call to police – "BD" sent another text stating, "[D]on't snitch again." Finally, the People proffered evidence that defendant made a series of telephone calls to the victim from jail following his arrest, during which he told her "[t]o do the right thing," a statement that the victim believed meant to "[n]ot tell on him."

Defendant elected to testify on his own behalf, confirming that, on the morning of January 19, 2017, he and the victim got into a verbal altercation about an alleged affair. According to defendant, the altercation turned physical when the victim "mushe[d]" his face. Defendant maintained

157 N.Y.S.3d 623

that, during the course of this argument, the victim tried to hit him with an unidentified "weapon" that she had obtained from a dresser drawer, but he blocked it and pushed it away, hitting the victim in the face. When he went to retrieve his hoodie to leave the apartment, he saw the victim "standing right there with a gun." Defendant maintained that the victim shot the gun, he jumped back and fell, and the gun hit the floor. Defendant testified that, as he was leaving, the victim told him to take the gun and he refused. He denied ever possessing or shooting a gun during the altercation.

Defendant admitted at trial that, after he left the apartment, he texted the victim, "Don't say anything[,] [d]on't snitch again." He maintained that he did so to protect the victim since he believed that she was pregnant with his child. Defendant also conceded that he sent the victim a text message that said "[w]rong move ... [j]ust shut the [expletive] up," but was adamant that this was in reference to the fact that she had shot at him and he did not want her talking to police. According to...