People v. Johnson

• Decision Date: 18 June 1990
• Citation: 162 A.D.2d 620,556 N.Y.S.2d 1004
• Parties: The PEOPLE, etc., Respondent, v. Van JOHNSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1004

556 N.Y.S.2d 1004

162 A.D.2d 620

The PEOPLE, etc., Respondent, v. Van JOHNSON, Appellant.

Supreme Court, Appellate Division,

Second Department.

June 18, 1990.

Martin Geoffrey Goldberg, Franklin Square, for appellant.

Van Johnson, appellant pro se.

John J. Santucci, Dist. Atty., Kew Gardens (Annette Cohen, of counsel), for respondent.

Before THOMPSON, J.P., and BROWN, EIBER and MILLER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Golia, J.), rendered June 8, 1988, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was jointly tried with his codefendant Martin White and convicted after a jury trial of murder and criminal possession of a weapon in connection with the fatal shooting of his sister's boyfriend Richard Matias. The circumstantial evidence submitted by the People at the joint trial is set forth in our decision on the appeal of the codefendant White (see, People v. White, 162 A.D.2d 646, 556 N.Y.S.2d 1006 [decided herewith]. Viewing that evidence in a 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 that the defendant either shot Matias or shared a "community of purpose" with his codefendant to do so (see, People v. Allah, 71 N.Y.2d 830, 527 N.Y.S.2d 731, 522 N.E.2d 1029; People v. Whatley, 69 N.Y.2d 784, 513 N.Y.S.2d 110, 505 N.E.2d 620; People v. Herring, 149 A.D.2d 731, 734, 540 N.Y.S.2d 515). The inference of the defendant's guilt is consistent with, and flows naturally and logically from the facts proved (see, People v. Kennedy, 47 N.Y.2d 196, 202, 417 N.Y.S.2d 452, 391 N.E.2d 288, rearg. dismissed 48 N.Y.2d 635, 656, 421 N.Y.S.2d 198, 1032, 396 N.E.2d 480, 488; People v. Benzinger, 36 N.Y.2d 29, 32, 364 N.Y.S.2d 855, 324 N.E.2d 334).

The defendant challenges as improper the admission of the nontestifying codefendant's statements as testified to by a third party. As a threshold matter, we note that contrary to the People's contention, the issue was properly preserved for appellate review by defense counsel's pretrial severance motion and his objections both prior to and during the trial to the admission of the codefendant's statements (see, People v. Brister, 149 A.D.2d 520, 540 N.Y.S.2d 254; People v. Ayala, 142 A.D.2d 147, 166, 534 N.Y.S.2d 1005). The codefendant's statement was redacted to avoid any references to the defendant and, thus, was not facially incriminating (see, Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176; People v. Kern, 149 A.D.2d 187, 238, 545 N.Y.S.2d 4, affd. 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235). The statement could be deemed to be incriminating only when linked with evidence introduced at a later stage of the trial. The United States Supreme Court recognized in Richardson v. Marsh (supra) that the necessity of such linkage minimized the probability that the jury would be unable to disregard incriminating inferences thereby overcoming the concern expressed by the Bruton court (Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476). In addition, on two occasions during the trial the trial court gave proper limiting instructions to the jury concerning the use of the codefendant's statement (see, Richardson v. Marsh, supra; People v. Kern, supra; People v. Marcus, 137 A.D.2d 723, 524 N.Y.S.2d 806). Accordingly, the admission of the redacted statement does not warrant reversal.

Furthermore,...