People v. Martinez

• Decision Date: 21 November 2018
• Docket Number: 107789
• Citation: 166 A.D.3d 1292,88 N.Y.S.3d 665
• Parties: The PEOPLE of the State of New York, Respondent, v. Emmanuel MARTINEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1292
88 N.Y.S.3d 665

The PEOPLE of the State of New York, Respondent,
v.
Emmanuel MARTINEZ, Appellant.

107789

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

Calendar Date: October 10, 2018
Decided and Entered: November 21, 2018

Matthew C. Hug, Albany, for appellant.

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

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

MEMORANDUM AND ORDER

Lynch, J.

88 N.Y.S.3d 668

At approximately 9:45 p.m. on August 30, 2013, police responded to a shooting at a home in the City of Schenectady, Schenectady County and discovered Luis Gomez with a nonfatal gunshot wound to his neck. Gomez's brother, Jose Torres, was discovered on the front lawn with fatal gunshot wounds to his torso. Defendant was subsequently arrested in Brooklyn and indicted for the crimes of murder in the second degree, attempted murder in the second degree, criminal possession of a weapon in the second degree (two counts), reckless endangerment in the first degree, attempted assault in the first degree and endangering the welfare of a child. Defendant's first jury trial ended in a mistrial. At the retrial, defendant was convicted as charged and Supreme Court sentenced him to an aggregate prison term of 65 years to life and five years of postrelease supervision. Defendant now appeals.

Defendant contends that the verdict was not legally sufficient and was against the weight of the evidence because the trial evidence did not establish that he was present at the crime scene. Although defendant did not preserve his legal sufficiency argument because he did not renew his motion to dismiss at the close of his proof (see People v. Kolupa , 13 N.Y.3d 786, 787, 887 N.Y.S.2d 536, 916 N.E.2d 430 [2009] ), "we necessarily determine whether the elements of the crime[s] were proven beyond a reasonable doubt" as part of our weight of the evidence review ( People v. Vanderhorst , 117 A.D.3d 1197, 1198, 984 N.Y.S.2d 688 [2014], lv denied 24 N.Y.3d 1089, 1 N.Y.S.3d 16, 25 N.E.3d 353 [2014] ; see People v. Danielson , 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). When conducting such a review, we must view all the credible evidence in a neutral light and determine, first, that an acquittal would not have been unreasonable and, only if so, "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" ( People v. Jemmott , 164 A.D.3d 953, 954–955, 82 N.Y.S.3d 657 [2018] [internal quotation marks and citations omitted]; see People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

At the trial, Gomez, who lived with his wife and three children, testified that defendant had been his neighbor for approximately a year. The evidence established that, while Gomez was incarcerated, his wife engaged in a brief sexual relationship with defendant. On the day that Gomez was released from jail, he confronted defendant about the affair and a street fight occurred during the afternoon involving defendant, Gomez, Torres and several others. The shooting occurred later that evening in Torres' backyard, where Gomez and his family and friends had gathered. Gomez, his wife, his two daughters, his son and one daughter's boyfriend each testified that they knew defendant and identified him as the individual who walked down the driveway leading to Torres' backyard, where he shot Gomez and Torres.¹ A

88 N.Y.S.3d 669

taxicab driver testified that he drove defendant to a location near Torres' house on the evening of the shooting. The People also presented evidence that defendant's cell phone "pinged" near Torres' home and showed the jury surveillance video taken on Torres' street the night of the shooting and near the street fight scene the prior afternoon. Kevin Allen, who was in custody with defendant, testified that he knew defendant because defendant had sold him drugs in the past. According to Allen, while the two were in custody, defendant told him that he "blasted" Gomez and Torres.

In addition to presenting witnesses who testified that defendant and Allen never had the occasion to speak with one another while in custody, defendant testified on his own behalf. He detailed the nature of his relationship with Gomez and Gomez's wife and the extent and aftermath of the street fight. According to defendant, after he and Gomez exchanged blows, he returned to the home that he shared with his girlfriend and then, fearing further confrontation, took a cab to Nikkia Michaud's apartment. Defendant testified that Michaud was an ex-girlfriend, he arrived at her apartment shortly after 9:00 p.m., the two watched movies and he remained overnight. At some point during the evening, defendant called his father, and the next morning defendant's mother arrived at Michaud's house and drove defendant back to Brooklyn. Although a different verdict was possible because the jury could have believed defendant's alibi testimony, when we weigh the evidence, view it in a neutral light and defer to the jury's credibility determinations, we find that the verdict was supported by the weight of the evidence (see People v. Davis , 155 A.D.3d 1311, 1315–1317, 65 N.Y.S.3d 253 [2017], lv denied 30 N.Y.3d 1114, 77 N.Y.S.3d 339, 101 N.E.3d 980 [2018] ; People v. Jackson , 100 A.D.3d 1258, 1260–1261, 954 N.Y.S.2d 679 [2012], lv denied 21 N.Y.3d 1005, 971 N.Y.S.2d 256, 993 N.E.2d 1279 [2013] ).

Defendant also argues that Supreme Court abused its discretion by permitting officer Brandon Kietlinski to testify that Gomez identified defendant as the shooter. Although hearsay, "an out-of-court statement is properly admissible under the excited utterance exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication" ( People v. McCauley , 162 A.D.3d 1307, 1309, 79 N.Y.S.3d 743 [2018] [internal quotation marks, brackets and citation omitted], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 865, 109 N.E.3d 1165 [2018] ). The basis for this exception is that "under certain circumstances of physical shock, ... [an excited] utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection" and is, therefore, more trustworthy ( People v. Johnson , 1 N.Y.3d 302, 306, 772 N.Y.S.2d 238, 804 N.E.2d 402 [2003] [internal quotation marks and citations omitted]; see People v. Cummings , 31 N.Y.3d 204, 209, 75 N.Y.S.3d 484, 99 N.E.3d 877 [2018] ).

Kietlinski testified that he arrived at the scene within minutes after...