People v. Myers

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: LAHTINEN
• Citation: People v. Myers, 105 A.D.3d 1250, 963 N.Y.S.2d 464, 2013 N.Y. Slip Op. 2781 (N.Y. App. Div. 2013)
• Decision Date: 25 April 2013
• Parties: The PEOPLE of the State of New York, Respondent, v. Ariel MYERS, Appellant.

105 A.D.3d 1250

963 N.Y.S.2d 464

2013 N.Y. Slip Op. 02781

The PEOPLE of the State of New York, Respondent,

v.Ariel MYERS, Appellant.

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

April 25, 2013.

Eugene P. Grimmick, Troy, for appellant.

Richard J. McNally Jr., District Attorney, Troy (Roman Griffith of counsel), for respondent.

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

LAHTINEN, J.

Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.), rendered September 13, 2010, upon a verdict convicting defendant of the crimes of assault in the first degree and criminal possession of a weapon in the second degree.

On September 13, 2009, a fight broke out and crowds gathered at about 1:30 a.m. and again at 3:30 a.m. outside the victim's home, which was near the Griswold Heights Apartment Complex in the City of Troy, Rensselaer County. During the second fracas, the victim exited his home with a camera and started taking photographs of those involved. Profanity-laced comments were directed at the victim telling him to stop taking photographs. A gun was then fired and a .25 caliber bullet struck the victim in the head, causing him to sustain permanent injuries whereby he will require around-the-clock care for the remainder of his life. The ensuing investigation resulted in police soon focusing on defendant, who was eventually located nearly two weeks later hiding in a vacant apartment. He was indicted in October 2009 on one count of attempted murder in the second degree, two counts of assault in the first degree and two counts of criminal possession of a weapon in the second degree. A jury acquitted defendant of attempted murder, but convicted him of one count of assault in the first degree and one count of criminal possession of a weapon in the second degree. County Court sentenced defendant to concurrent prison terms of 25 years for assault and 15 years for criminal possession of a weapon, together with postrelease supervision. Defendant appeals.

Defendant initially challenges County Court's Molineux ruling in which it permitted Robert Cruz to testify about seeing defendant wielding a .25 caliber handgun about 2 1/2 months before the subject shooting. Although evidence of uncharged crimes or bad acts is not admissible to prove criminal propensity, nevertheless, one of the recognized exceptions permits such evidence under some circumstances when identity is at issue and such proof is pertinent thereto ( see People v. Agina, 18 N.Y.3d 600, 603, 942 N.Y.S.2d 411, 965 N.E.2d 913 [2012];People v. Chamberlain, 96 A.D.2d 959, 960, 466 N.Y.S.2d 860 [1983] ). Here, the identity of the shooter was a key issue at trial and the fact that defendant previously had been seen brandishing the same caliber of handgun as was used to commit the crime was relevant to the issue of identity ( see People v. Burnell, 89 A.D.3d 1118, 1121, 931 N.Y.S.2d 776 [2011],lv. denied18 N.Y.3d 922, 942 N.Y.S.2d 461, 965 N.E.2d 963 [2012];People v. Portee, 56 A.D.3d 947, 950, 867 N.Y.S.2d 564 [2008],lv. denied12 N.Y.3d 820, 881 N.Y.S.2d 27, 908 N.E.2d 935 [2009];People v. Rivera, 281 A.D.2d 702, 703, 721 N.Y.S.2d 429 [2001],lv. denied96 N.Y.2d 805, 726 N.Y.S.2d 383, 750 N.E.2d 85 [2001];People v. Brown, 266 A.D.2d 863, 863, 697 N.Y.S.2d 892 [1999],lv. denied94 N.Y.2d 860, 704 N.Y.S.2d 536, 725 N.E.2d 1098 [1999] ). The People established that this evidence was relevant to a material issue ( see People v. Cass, 18 N.Y.3d 553, 560, 942 N.Y.S.2d 416, 965 N.E.2d 918 [2012] ), and County Court did not abuse its discretion in determining that the probative value outweighed the danger of prejudice ( see id.;People v. Burnell, 89 A.D.3d at 1121, 931 N.Y.S.2d 776). County Court further gave an appropriate limiting instruction both when the proof was presented and in its charge to the jury ( see People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 [2009];People v. Reid, 97 A.D.3d 1037, 1038, 949 N.Y.S.2d 257 [2012],lv. denied19 N.Y.3d 1104, 955 N.Y.S.2d 560, 979 N.E.2d 821 [2012] ).

Next, defendant argues that County Court erred in allowing the People to introduce evidence purporting to show defendant's consciousness of guilt. Consciousness of guilt evidence is weak, but it “may be admissible so long as it is relevant, meaning that it has a tendency to establish the fact sought to be proved—that defendant was aware of guilt” ( People v. Bennett, 79 N.Y.2d 464, 470, 583 N.Y.S.2d 825, 593 N.E.2d 279 [1992];see People v. Cintron, 95 N.Y.2d 329, 332–333, 717 N.Y.S.2d 72, 740 N.E.2d 217 [2000] ). Defendant was found 13 days after the shooting hiding in a vacant apartment adjoining his sibling's residence. County Court allowed the proof after finding that its probative value outweighed its prejudicial impact. The court later restricted the extent of the People's use in summation of the consciousness of guilt evidence and charged the jury that such evidence is often of slight value and cannot be the sole basis for a finding of guilt. We are unpersuaded that the trial court's handling of this issue constituted reversible error ( see People v. Scharpf, 60 A.D.3d 1101, 1103, 874 N.Y.S.2d 322 [2009],lv. denied13 N.Y.3d 862, 891 N.Y.S.2d 696, 920 N.E.2d 101 [2009];People v. Price, 135 A.D.2d 750, 750–751, 522 N.Y.S.2d 870 [1987],lv. denied71 N.Y.2d 972, 529 N.Y.S.2d 83, 524 N.E.2d 437 [1988] ).

The jury verdict is supported by legally sufficient evidence and is not against the weight of the evidence. When considering legal sufficiency, we view the evidence “in a light most favorable to the People and will not disturb a verdict as long as there is a ‘valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury’ ” ( People v. Blond, 96 A.D.3d 1149, 1151, 946 N.Y.S.2d 663 [2012],lv. denied19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012], quoting People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). The victim's wife testified that her husband went outside to take pictures of the crowd, she heard someone state “this is what you get” followed by a single gunshot, and the crowd scattered as she ran outside finding her husband bleeding from his head. Several witnesses reported seeing defendant, who was visible because of his height, in the crowd and in the vicinity from where the gun was fired. One witness, Frank McGivern,was watching from his nearby apartment and had previously seen defendant many times as someone living in the neighborhood. McGivern identified defendant as the shooter. He recalled seeing the victim start taking pictures and people in the crowd yelling at him. McGivern stated that he watched as the tallest individual in the crowd put his arm out and a flame appeared to come out of this individual's arm as a gun was fired. The people from the crowd then began running in various directions and McGivern visually followed the tall individual who had apparently fired a gun. That individual ran near McGivern's window, and he recognized him as defendant. The evidence was legally sufficient to identify defendant as the person who fired the gun and to otherwise support the convictions.

Where, as here, a different verdict would not have been unreasonable, our weight of the evidence analysis involves “weighing the probative force of the conflicting testimony and considering the relative strength of the inferences to be drawn therefrom, while giving due deference to the jury's credibility determinations” ( People v. Callicut, 101 A.D.3d 1256, 1259, 956 N.Y.S.2d 607 [2012],lv. denied20 N.Y.3d 1096, 965 N.Y.S.2d 792, 988N.E.2d –––– [Mar. 21, 2013]; see People v. Romero, 7 N.Y.3d 633, 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006];People v. Barringer, 54 A.D.3d 442, 443, 862 N.Y.S.2d 214 [2008],lv. denied11 N.Y.3d 830, 868 N.Y.S.2d 604, 897 N.E.2d 1088 [2008] ). Several of the People's witnesses had criminal histories and there were inconsistencies in some testimony. Most notably, Cruz, the witness who testified about seeing defendant previously wielding a .25 caliber handgun, had an extensive criminal record and acknowledged that he contacted police regarding defendant in order to receive favorable treatment in a pending criminal matter. Further, although McGivern initially testified that he saw defendant pull a gun out of his waist, point and shoot across the street at the victim, upon closer questioning McGivern acknowledged that he could not see the shooter's face at the time the gun fired because the shooter's back was toward him (but he identified him as defendant as he fled the scene) and he did not see a gun (but saw a flame appear to come out of the shooter's arm). These weaknesses in the People's case were amply brought out at trial and presented credibility issues for the jury. Upon weighing and considering the evidence in the record, we find that the jury's verdict is supported by the weight of the evidence ( see People v. Sharpe, 70 A.D.3d 1184, 1185, 896 N.Y.S.2d 189 [2010],lv. denied14 N.Y.3d 892, 903 N.Y.S.2d 781, 929 N.E.2d 1016 [2010] ).

Defendant contends that he was deprived of a fair trial by two statements made by the prosecutor during summation. In commenting upon and explaining McGivern's delay in contacting police, the prosecutor indicated in a somewhat colorful fashion that McGivern faced the same fate as the victim if he contacted police. County Court directed the prosecutor to “tone it down” and the statement, while inartful and embellished, was otherwise a fair comment on McGivern's testimony that he did not immediately talk to police because he had to live in the neighborhood. In a second challenged summation comment, the prosecutor stated that police were all over the case and the people they interviewed all told them that defendant was involved. Counsel objected and County Court immediately instructed the jury to disregard the statement and added that there was no such...