People v. Moorer

• Decision Date: 25 March 2016
• Citation: 27 N.Y.S.3d 783,137 A.D.3d 1711
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert C. MOORER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1711

27 N.Y.S.3d 783

The PEOPLE of the State of New York, Respondent,

v.Robert C. MOORER, Defendant–Appellant.

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

March 25, 2016.

Timothy P. Donaher, Public Defender, Rochester, Trevett Cristo Salzer & Andolina P.C. (Eric M. Dolan Of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.

PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.

MEMORANDUM:

Defendant appeals from a judgment, following a jury trial, convicting him of reckless endangerment in the first degree (Penal Law § 120.25 ) and criminal possession of a weapon in the third degree (§ 265.02 [1] ). Contrary to defendant's contention, the verdict with respect to reckless endangerment in the first degree is not against the weight of the evidence. Viewing the elements of that crime as charged to the jury, we conclude that the elements were proved beyond a reasonable doubt (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). The evidence established that defendant fired a rifle with large caliber ammunition from a distance of 12 to 15 feet at a 45–degree angle toward a group of children playing soccer at an apartment complex and, "in doing so, he created a grave risk of death under circumstances evincing a depraved indifference to human life" (People v. Collins, 70 A.D.3d 1366, 1367, 897 N.Y.S.2d 803, lv. denied 14 N.Y.3d 839, 901 N.Y.S.2d 146, 927 N.E.2d 567 ; see People v. Payne, 71 A.D.3d 1289, 1290, 897 N.Y.S.2d 292, lv. denied 15 N.Y.3d 777, 907 N.Y.S.2d 465, 933 N.E.2d 1058 ; People v. Lobban, 59 A.D.3d 566, 566, 872 N.Y.S.2d 557, lv. denied 12 N.Y.3d 818, 881 N.Y.S.2d 26, 908 N.E.2d 934 ; cf. People v. Stanley, 108 A.D.3d 1129, 1131, 970 N.Y.S.2d 136, lv. denied22 N.Y.3d 959, 977 N.Y.S.2d 190, 999 N.E.2d 555 ). Even assuming, arguendo, that a different verdict would not have been unreasonable (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ), we conclude that the jury did not fail to give the evidence the weight it should be accorded (see Collins, 70 A.D.3d at 1367, 897 N.Y.S.2d 803 ).

We reject defendant's contention that County Court erred in permitting the People to offer testimony regarding a second rifle and ammunition for both rifles, which were retrieved by the police from the open trunk of defendant's car, inasmuch as that evidence was relevant to show defendant's intent to use the weapon he had fired against another person (see People v. Madera, 103 A.D.3d 1197, 1199–1200, 959 N.Y.S.2d 337, lv. denied 21 N.Y.3d 1006, 971 N.Y.S.2d 257, 993 N.E.2d 1280 ). We further conclude that the probative value of that evidence is not outweighed by its alleged prejudicial effect (see generally People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 ). Defendant failed to object to the testimony regarding the military capability of the ammunition and thus failed to preserve for our review his contention that the court erred in...