People v. Harwood

• Decision Date: 12 May 2016
• Docket Number: 106299.
• Parties: The PEOPLE of the State of New York, Respondent, v. Joshua HARWOOD, Appellant.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 1186

31 N.Y.S.3d 310

2016 N.Y. Slip Op. 03769

The PEOPLE of the State of New York, Respondent,

v.Joshua HARWOOD, Appellant.

106299.

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

May 12, 2016.

Adam G. Parisi, Schenectady, for appellant.

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

Before: LAHTINEN, J.P., McCARTHY, GARRY, ROSE and MULVEY, JJ.

McCARTHY

, J.

Appeal from a judgment of the County Court of Schenectady County (Hoye, J.), rendered July 24, 2013, upon a verdict convicting defendant of the crimes of attempted murder in the second degree, attempted assault in the first degree, criminal possession of a weapon in the second degree (two counts) and reckless endangerment in the first degree.

Defendant was charged in a five-count indictment with various crimes stemming from his alleged involvement in a shooting. Following a jury trial, defendant was convicted of attempted murder in the second degree, attempted assault in the first degree, two counts of criminal possession of a weapon in the second degree and reckless endangerment in the first degree. Defendant was sentenced, as a second felony offender, to an aggregate prison term of 20 years to be followed by five years of postrelease supervision. Defendant appeals, and we affirm.

We reject defendant's contention that the verdict was either based on legally insufficient evidence or that it was against the weight of the evidence. Guilt of attempted murder in the second degree requires proof “that defendant, acting with intent to cause the death of another, engaged in conduct which tended to effect the commission of that crime” (People v. Greenfield, 112 A.D.3d 1226, 1226, 977 N.Y.S.2d 486 [2013]

, lv. denied 23 N.Y.3d 1037, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ; see Penal Law §§ 110.00, 125.25 [1] ). In regard to the charge of attempted assault in the first degree, the People had to prove that, “[w]ith intent to cause serious physical injury to another person,” defendant attempted to cause “such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument” (Penal Law § 120.10[1] ; see Penal Law § 110.00 ; People v. Lanier, 130 A.D.3d 1310, 1311, 15 N.Y.S.3d 241 [2015], lv. denied 26 N.Y.3d 1009, 20 N.Y.S.3d 550, 42 N.E.3d 220 [2015] ). One count of criminal possession of a weapon in the second degree required proof that defendant intended to use a loaded firearm against another person, while the other count required defendant to possess a loaded firearm outside of his home or business (see Penal Law § 265.03[1][b] ; [3]; People v. Capers, 129 A.D.3d 1313, 1314, 12 N.Y.S.3d 317 [2015] ). Finally, “[a] person is guilty of reckless endangerment in the first degree when, ‘under circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person’ ” (People v. Heesh, 94 A.D.3d 1159, 1161, 941 N.Y.S.2d 767 [2012], lv. denied 19 N.Y.3d 961, 950 N.Y.S.2d 113, 973 N.E.2d 211 [2012], quoting Penal Law § 120.25 ).

At trial, proof was introduced that defendant, in a phone call shortly before the shooting, had threatened to kill his ex-girlfriend, who lived on the street where the shooting occurred. Further proof was introduced suggesting that defendant knew what street the ex-girlfriend lived on, but not, perhaps, the exact residence. Evidence related to a GPS tracker established that, at the time of the shooting, a vehicle that defendant drove was stopped in close approximation to the scene of the shooting. Moreover, evidence placed defendant in that car in the immediate aftermath of the shooting. In addition, ballistic evidence was consistent with certain types of firearms having been used in the shooting, and other evidence tended to suggest that defendant had recently stolen matching firearms. The testimony of defendant's niece and sister established that defendant had left their residence shortly before the shooting and returned shortly after the shooting. The ex-girlfriend testified that, after hearing the gunshots near her residence, she saw defendant running away from the street where the shooting had occurred. Defendant's sister testified that when defendant returned to their residence, he placed his clothes in the wash, began to wash himself with bleach substitute and explained that he was taking these actions in order to remove gunshot residue. Finally, proof was introduced from which a reasonable inference could be drawn that it would have been readily apparent to a shooter that the residence into which shots were fired was occupied by people.

Given the aforementioned proof, the evidence was legally sufficient to support the jury's verdict (see People v....