People v. Martin

• Decision Date: 25 February 2016
• Citation: 136 A.D.3d 1218,26 N.Y.S.3d 382
• Parties: The PEOPLE of the State of New York, Respondent, v. Kolby MARTIN, Appellant.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 1218

26 N.Y.S.3d 382

The PEOPLE of the State of New York, Respondent,

v.Kolby MARTIN, Appellant.

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

Feb. 25, 2016.

James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.

P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.

Before: McCARTHY, J.P., GARRY, ROSE and DEVINE, JJ.

ROSE, J.

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered June 22, 2012 in Albany County, upon a verdict convicting defendant of the crimes of attempted murder in the second degree, criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree (three counts).

Following a jury trial, defendant was convicted of attempted murder in the second degree, criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree (three counts) for his role as the shooter in a drive-by shooting. He was sentenced as a second felony offender to an aggregate prison term of 25 years, followed by five years of postrelease supervision. He now appeals.

Supreme Court's Sandoval ruling "appropriately balanced the probative value of the proof pertaining to defendant's credibility against the risk of unfair prejudice" (People v. Portis, 129 A.D.3d 1300, 1303, 12 N.Y.S.3d 328 [2015], lv. denied 26 N.Y.3d 1091, 23 N.Y.S.3d 648, 44 N.E.3d 946 [2015] [internal quotation marks and citation omitted]; see People v. Sandoval,

34 N.Y.2d 371, 377, 357 N.Y.S.2d 849, 314 N.E.2d 413 [1974] ). When the People sought to use five of defendant's 10 prior convictions to impeach him during cross-examination, the court precluded inquiry into two of them and limited the scope of inquiry into the remaining three convictions to exclude any mention of the underlying facts. While two of those three convictions-a 2002 conviction for criminal sale of a controlled substance in the fifth degree and a 2001 conviction of attempted robbery in the second degree-were remote in time, "there is no bright-line rule of exclusion based upon age of conviction" (People v. Wilson, 78 A.D.3d 1213, 1216, 910 N.Y.S.2d 276 [2010], lv. denied 16 N.Y.3d 747, 917 N.Y.S.2d 628, 942 N.E.2d 1053 [2011] ; see People v. Portis, 129 A.D.3d at 1303, 12 N.Y.S.3d 328 ), and the court correctly noted that both convictions directly implicated defendant's willingness to put his own interests above those of society.

Although defendant's challenge to the legal sufficiency of the evidence was not properly preserved (see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ; People v. Briggs, 129 A.D.3d 1201, 1202, 13 N.Y.S.3d 255 [2015], lv. denied 26 N.Y.3d 1038, 22 N.Y.S.3d 167, 43 N.E.3d 377 [2015] ), we will evaluate the adequacy of the proof at trial as part of our weight of the evidence review (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Andrews, 127 A.D.3d 1417, 1419, 7 N.Y.S.3d 647 [2015], lv. denied 25 N.Y.3d 1159, 15 N.Y.S.3d 291, 36 N.E.3d 94 [2015] ). At trial, the People produced an eyewitness who testified that she saw a vehicle pull up to the curb of a city street and then heard a series of gunshots fired at two young men on the sidewalk. As the victims fled, the eyewitness saw blood on the back of one victim's shirt. A police sergeant, who also heard the initial shots and observed a driver and a passenger in the vehicle, testified that he witnessed an arm emerge from the passenger-side window and fire a handgun at one of the fleeing victims. The vehicle then sped away and a number of police vehicles became involved in an extended high speed chase through city streets, ending in defendant's apprehension.

During the chase, a police detective who had known defendant for over 10 years clearly observed and identified him as the passenger in the vehicle. As the detective pursued the vehicle, he saw it slow down and then speed up again after the passenger-side door swung open for a moment. The detective returned to that location, where two loaded and operable handguns were recovered. At trial, the People's experts linked defendant's DNA and a shell casing recovered from the scene to the handguns. Viewing the evidence in a neutral light and according...