People v. Mckoy

• Docket Number: 325 KA 18-02110
• Decision Date: 09 June 2023
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. WILLIE D. MCKOY, ALSO KNOWN AS JUNE, DEFENDANT-APPELLANT. (APPEAL NO. 1.)
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 03119

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
WILLIE D. MCKOY, ALSO KNOWN AS JUNE, DEFENDANT-APPELLANT. (APPEAL NO. 1.)

No. 325 KA 18-02110

Supreme Court of New York, Fourth Department

June 9, 2023

CAMBARERI & BRENNECK, SYRACUSE (MELISSA K. SWARTZ OF COUNSEL), FOR DEFENDANT-APPELLANT.

JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., LINDLEY, CURRAN, MONTOUR, AND OGDEN, JJ.

Appeal from a judgment of the Supreme Court, Ontario County (Craig J. Doran, J.), rendered August 20, 2018. The judgment convicted defendant, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the second degree.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by directing that the sentence imposed on count two of the indictment shall run concurrently with the sentence imposed on count one of the indictment, and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of murder in the second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the second degree (§ 265.03 [3]), arising from the fatal shooting of the victim as he sat in the front passenger seat of a vehicle in a parking lot at night.

Defendant contends that he was denied a fair trial by prosecutorial misconduct because the prosecutor failed to correct trial testimony that he knew to be false when two eyewitnesses gave discrepant accounts whether they had seen and spoken with each other in the parking lot. Defendant failed to preserve that contention for our review (see CPL 470.05 [2]; People v Reed, 151 A.D.3d 1821, 1823 [4th Dept 2017], lv denied 30 N.Y.3d 952 [2017]; People v Mulligan, 118 A.D.3d 1372, 1374 [4th Dept 2014], lv denied 25 N.Y.3d 1075 [2015]) and, in any event, it lacks merit. Although a prosecutor has a "duty to correct [trial testimony that the prosecutor] knows to be false and [to] elicit the truth" (People v Savvides, 1 N.Y.2d 554, 557 [1956]; see People v Colon, 13 N.Y.3d 343, 349 [2009], rearg denied 14 N.Y.3d 750 [2010]; People v Williams, 61 A.D.3d 1383, 1383 [4th Dept 2009], lv denied 13 N.Y.3d 751 [2009]), the record contains no evidence that the prosecutor knowingly elicited or failed to correct false testimony or misled the jury (see Reed, 151 A.D.3d at 1823; Mulligan, 118 A.D.3d at 1374; Williams, 61 A.D.3d at 1383; People v Encarnacion, 269 A.D.2d 779, 780 [4th Dept 2000], lv denied 94 N.Y.2d 918 [2000]).

Defendant next contends that testimony at trial revealed for the first time that the police located him following the shooting by "pinging" his cell phone, and that any evidence derived therefrom should have been suppressed as the product of an illegal warrantless search. That contention is not properly before us inasmuch as defendant failed to move to reopen the suppression hearing based on the relevant trial testimony (see People v Huddleston, 160 A.D.3d 1359, 1361 [4th Dept 2018], lv denied 31 N.Y.3d 1149 [2018]; see also People v Carzoglio, 198 A.D.3d 810, 811-812 [2d Dept 2021], lv denied 39 N.Y.3d 985 [2022]; People v Jin Zheng, 127 A.D.3d 890, 890 [2d Dept 2015], lv denied 25 N.Y.3d 1203 [2015]).

Defendant further contends that Supreme Court erred in admitting, over his foundation objection, the testimony of a female acquaintance that defendant sent her text messages following the shooting stating, inter alia, that he was going to be arrested and requesting that the acquaintance provide him with an alibi for the night of the shooting. We reject that contention. Here, although the acquaintance deleted the text messages, and there was no Internet service provider evidence or other technical evidence in this regard, the text messages were properly authenticated, through circumstantial evidence, as sent by defendant (see People v Pierre, 41 A.D.3d 289, 291 [1st Dept 2007], lv denied 9 N.Y.3d 880 [2007]). The acquaintance's testimony established that defendant's phone number was saved in her cell phone under his nickname and that she frequently texted with defendant at that number (see People v Kingsberry, 194 A.D.3d 843, 844 [2d Dept 2021], lv denied 37 N.Y.3d 993 [2021]; People v Serrano, 173 A.D.3d 1484, 1488 [3d Dept 2019], lv denied 34 N.Y.3d 937 [2019]), and "the identity of the sender[]... of the messages was [also] sufficiently authenticated by the content of the text messages" (People v Mencel, 206 A.D.3d 1550, 1552 [4th Dept 2022], lv denied 38 N.Y.3d 1152 [2022]; see People v Green, 107 A.D.3d 915, 916 [2d Dept 2013], lv denied 22 N.Y.3d 1088 [2014]; Pierre, 41 A.D.3d at 291). Moreover, "[t]he credibility of the authenticating witness goes to the weight to be accorded the evidence, not to its admissibility" and, to the extent that defendant suggests that someone else could have sent the messages from the phone number associated with him, the likelihood of that scenario "presented a factual issue for the jury to resolve" (Serrano, 173 A.D.3d at 1488; see People v Tucker, 200 A.D.3d 1584, 1586 [4th Dept 2021], lv denied 38 N.Y.3d 954 [2022]).

Contrary to defendant's related contention, we conclude that the court did not err in admitting in evidence a letter allegedly written by defendant to the acquaintance inasmuch as the circumstantial evidence was sufficient to authenticate the letter (see People v Myers, 87 A.D.3d 826, 827-828 [4th Dept 2011], lv denied 17 N.Y.3d 954 [2011]; People v Bryant, 12 A.D.3d 1077, 1079 [4th Dept 2004], lv denied 4 N.Y.3d 761 [2005]). Contrary to defendant's challenge to the relevance of the letter, inasmuch as the letter could reasonably be interpreted as an attempt to obtain a false alibi from the acquaintance, it "comes within the broad category of conduct evidencing a 'consciousness of guilt' and, therefore, [was] admissible and relevant on the question of... defendant's guilt" (People v Leyra, 1 N.Y.2d 199, 208 [1956]; see generally People v Moses...