People v. Mathews

• Decision Date: 10 December 2015
• Parties: The PEOPLE of the State of New York, Respondent, v. Radheya MATHEWS, Appellant.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 1248
21 N.Y.S.3d 465

The PEOPLE of the State of New York, Respondent,
v.
Radheya MATHEWS, Appellant.

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

Dec. 10, 2015.

21 N.Y.S.3d 467

Catherine A. Barber, Albany, for appellant.

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

Before: LAHTINEN, J.P., McCARTHY, LYNCH and DEVINE, JJ.

LYNCH, J.

134 A.D.3d 1248

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered June 17, 2013, upon a verdict convicting defendant of the crimes of attempted murder in the second degree, assault in the first degree and criminal possession of a weapon in the second degree.

Following a jury trial in 2013, defendant was convicted of attempted murder in the second degree, assault in the first degree and criminal possession of a weapon in the second degree stemming from an incident on June 14, 2011 at the apartment of Challana Dobbs, during which defendant shot Riley Ritter (hereinafter the victim) in the chest. Defendant

134 A.D.3d 1249

was sentenced as a second felony offender to a prison term of 25 years, with five years of postrelease supervision. Defendant appeals.

We affirm. We are unpersuaded by defendant's assertions that the verdict was legally insufficient and against the weight of the evidence for failing to establish his identity as the perpetrator. Dobbs testified that she lived in the apartment with her two children, fathered by defendant, and a child (hereinafter the child) from a different relationship. The incident occurred at around 7:00 a.m., while the victim and Dobbs were in bed, when she awakened to find a person standing in the doorway. Although the victim was unable to identify defendant, Dobbs testified that it was defendant standing in the bedroom. Both the victim and Dobbs testified that defendant angrily questioned why the victim was in the house when defendant's children were present. Within moments, as the victim stood by the bed, defendant shot him. By his account, the next thing the victim remembered was waking up in the hospital. Dobbs testified that the victim ran into the kitchen and was pursued by defendant, who proceeded to strike him in the head with the gun. The child testified that she heard the commotion, looked out her bedroom doorway and saw defendant chasing the victim into the kitchen, while striking him with the gun. She testified that defendant motioned for her to "shush" before exiting the apartment. Dobbs called 911, and the police arrived to find the victim unconscious on the kitchen

21 N.Y.S.3d 468

floor, bleeding from a chest wound. Notably, defendant acknowledged during a subsequent phone call with Dobb's mother that he shot the victim because he had warned Dobbs not to have other men around his children. This direct testimony and admission was more than sufficient to establish defendant's identity as the shooter. While defendant challenged the credibility of both the victim and Dobbs, based on their criminal records and purported involvement with drugs, the credibility of these witnesses was within the province of the jury to assess (see People v. Launder, 132 A.D.3d 1151, 1153, 18 N.Y.S.3d 747 [2015] ; People v. Richards, 124 A.D.3d 1146, 1147, 2 N.Y.S.3d 689 [2015], lv. denied 25 N.Y.3d 992, 10 N.Y.S.3d 535, 32 N.E.3d 972 [2015] ; People v. Wingo, 103 A.D.3d 1036, 1037, 962 N.Y.S.2d 422 [2013], lv. denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013] ).

The remaining elements of each offense were readily established. Having fired a gun at the victim's chest from a short range within the bedroom, the jury could readily infer that defendant acted with the intent to cause the death of the victim, as required for the attempted murder charge (see Penal Law § 125.25[1] ;

134 A.D.3d 1250

People v. Holmes, 129 A.D.3d 1692, 1693–1694, 13 N.Y.S.3d 720 [2015], lv. denied 26 N.Y.3d 968, 18 N.Y.S.3d 605, 40 N.E.3d 583 [2015] ; People v. King, 124 A.D.3d 1064, 1065–1066, 1 N.Y.S.3d 569 [2015], lv. denied 25 N.Y.3d 1073, 12 N.Y.S.3d 625, 34 N.E.3d 376 [2015] ). Similarly, the jury could find that defendant intended to cause serious physical injury, as required for the assault in the first degree charge (see Penal Law § 10.00[10] ; People v. Heyliger, 126 A.D.3d 1117, 1117–1119, 5 N.Y.S.3d 566 [2015], lv. denied 25 N.Y.3d 1165, 15 N.Y.S.3d 297, 36 N.E.3d 100 [2015] ; compare People v. Daniels, 97 A.D.3d 845, 847, 948 N.Y.S.2d 431 [2012], lv. denied 20 N.Y.3d 931, 957 N.Y.S.2d 691, 981 N.E.2d 288 [2012] ; People v. Gray, 30 A.D.3d 771, 772–773, 816 N.Y.S.2d 609 [2006], lv. denied 7 N.Y.3d 848, 823 N.Y.S.2d 777, 857 N.E.2d 72 [2006] ). The physician who performed emergency surgery on the victim testified that he had sustained a life threatening injury, satisfying the "serious physical injury" element. Finally, the evidence clearly confirmed that defendant possessed and used an operable gun to shoot the victim, establishing the elements necessary for a conviction of criminal possession of a weapon in the second degree (see Penal Law § 265.03[1][b] ).

County Court did not err in denying defendant's motion for a mistrial. The motion was prompted when Steven Nelson, the police officer who responded to the scene, was asked on direct examination whether he knew defendant "by face" and Nelson responded, "I recognized his photo when I looked it up." While defendant maintains that the response was suggestive of a "mug shot" and thus a prior arrest, County Court promptly intervened before any further testimony could be given and offered to provide a curative instruction directing the jury to disregard the comment (see People v. Yontz, 116 A.D.3d 1242, 1244, 983...