People v. Miller

• Decision Date: 12 June 2014
• Parties: The PEOPLE of the State of New York, Respondent, v. Darrin MILLER, Appellant.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 1127
987 N.Y.S.2d 501
2014 N.Y. Slip Op. 04267

The PEOPLE of the State of New York, Respondent,
v.
Darrin MILLER, Appellant.

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

June 12, 2014.

[987 N.Y.S.2d 502]

Sandra M. Colatosti, Albany, for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: LAHTINEN, J.P., STEIN, GARRY and ROSE, JJ.

LAHTINEN, J.P.

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered May 3, 2012 in Albany County, upon verdicts 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.

In September 2010, as patrons were leaving a nightclub in the City of Albany at around 4:00 a.m., defendant was observed by two members of the nightclub's security staff firing multiple shots from a handgun at a vehicle as it sped out of the parking lot. Defendant was later charged in a multicount indictment and a jury found him guilty of criminal possession of a weapon in the second degree, but the jury was deadlocked on several counts. A second trial on the counts where the first jury had been unable to reach a verdict resulted in defendant being convicted of attempted murder in the second degree and criminal use of a firearm in the first degree. He was sentenced, as a second violent felony offender, to concurrent prison terms with an aggregate maximum of 19 years plus postrelease supervision. Defendant appeals.

Defendant argues that his convictions in the second trial for attempted murder and criminal use of a firearm (counts 1 and 2 of the indictment) were not supported by legally sufficient evidence and were against the weight of the evidence. The focus of his argument is that firing shots at a retreating vehicle was insufficient to establish the element of intent to cause the

[987 N.Y.S.2d 503]

death of another. “[I]ntent can ... be inferred from the defendant's conduct and the surrounding circumstances and indeed this may be the only way of proving intent in the typical case of criminal attempt” ( People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094 [1977] [internal quotation marks and citations omitted]; see People v. Callicut, 101 A.D.3d 1256, 1258, 956 N.Y.S.2d 607 [2012],lvs. denied20 N.Y.3d 1096, 965 N.Y.S.2d 792, 988 N.E.2d 530 [2013]20 N.Y.3d 1097, 965 N.Y.S.2d 793, 988 N.E.2d 531 [2013] ). Testimony at trial included two of the nightclub's security staff as well as several City of Albany police officers, who were on hand because of possible crowd control issues when the show at the nightclub ended at 4:00 a.m. The security staff were escorting two unruly patrons off the premises when they were notified of a problem in the back parking lot. As they headed to the back lot, they heard two shots. The security staff then saw a black car speeding away and a man—later identified as defendant—firing four to six shots at the car. The car came within an estimated five feet of defendant and he ran after the car continuing to shoot at it. Although the police officers at the scene were not in a location to see the shooting, they were provided a description of the shooter by security staff and the officers quickly apprehended defendant, as well as later finding the handgun and other evidence.

After receiving Miranda warnings, defendant agreed to talk with police, and that interview was recorded and received into evidence at trial. Defendant claimed that a friend of his was being attacked outside the nightclub and that he went to assist his friend, including wrestling a gun from one individual. He stated that shots were fired at him by a person who left the fight and got into the car. Defendant, who testified at both trials, acknowledged shooting at the car, but claimed he was only trying to scare the car away. There was also evidence that one of the individuals that defendant thought was in the car was someone that defendant believed had shot his brother a few weeks earlier.

Viewed most favorably to the People, the evidence established that defendant repeatedly fired a .45 caliber semiautomatic handgun at the car from a distance as close as five feet. He believed that an occupant of the car had recently shot his brother. His contention that he was merely attempting to scare off the car created a credibility issue for the jury and was undermined by the fact that he ran after the car continuing to fire at it as it left the scene. The proof was legally sufficient to support the jury's verdict ( see People v. Malik'El, 234 A.D.2d 566, 566, 652 N.Y.S.2d 50 [1996],lv. denied89 N.Y.2d 987, 656 N.Y.S.2d 745, 678 N.E.2d 1361 [1997];People v. Torres, 149 A.D.2d 747, 748, 540 N.Y.S.2d 531 [1989],lv. denied74 N.Y.2d 748, 545 N.Y.S.2d 122, 543 N.E.2d 765 [1989] ). Moreover, after viewing the evidence in a neutral light, while according deference to the jury's credibility determinations, we are unpersuaded that the verdict was against the weight of the evidence ( see People v. Collazo, 45 A.D.3d 899, 900–901, ...