People v. Nunes
| Citation | 90 N.Y.S.3d 694,168 A.D.3d 1187 |
| Decision Date | 10 January 2019 |
| Docket Number | 108585 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Carlson NUNES, Appellant. |
| Court | New York Supreme Court — Appellate Division |
168 A.D.3d 1187
90 N.Y.S.3d 694
The PEOPLE of the State of New York, Respondent,
v.
Carlson NUNES, Appellant.
108585
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: November 14, 2018
Decided and Entered: January 10, 2019
Matthew C. Hug, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Mulvey, J.P., Devine, Aarons, Rumsey and Pritzker, JJ.
MEMORANDUM AND ORDER
Rumsey, J.
Appeal from a judgment of the Supreme Court (Milano, J.), rendered April 26, 2016 in Schenectady County, upon a verdict convicting defendant of the crimes of murder in the second degree, manslaughter in the first degree, attempted robbery in the first degree (three counts), attempted robbery in the second degree, criminal possession of a weapon in the second degree (two counts), aggravated criminal possession of a weapon, criminal use of a firearm in the second degree (two counts) and assault in the second degree.
Defendant was charged in a 14–count indictment based upon allegations that he shot and killed Carlos Figueroa during a confrontation that ensued following a failed drug transaction. According to defendant, the weapon had been possessed by the victim and accidently discharged during the confrontation. After a jury trial, defendant was convicted of murder in the second degree, manslaughter in the first degree, three counts of attempted robbery in the first degree, attempted robbery in the second degree, two counts of criminal possession of a weapon in the second degree, aggravated criminal possession of a weapon, two counts of criminal use of a firearm in the second degree and assault in the second degree. Defendant was sentenced to a prison term of 22 years to life for the murder conviction and lesser determinate sentences on the remaining convictions, all sentences to run concurrently. Defendant appeals.
Defendant contends that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence. "When considering a challenge to the legal sufficiency
of the evidence, we view the evidence in the light most favorable to the People and evaluate whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged. A weight of the evidence review requires us first to decide whether, based on all the credible evidence, a different finding would not have been unreasonable, and then, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony. When conducting a review of the weight of the evidence, we view the evidence in a neutral light and defer to the jury's credibility assessments" ( People v. Granger, 166 A.D.3d 1377, 1378, 88 N.Y.S.3d 706 [2018] [internal quotation marks and citations omitted] ).
On February 16, 2015, defendant's brother, Christopher Nunes, contacted defendant by telephone and requested that defendant participate in a plan that Nunes and Rab Everitt had made to acquire marihuana from Justice Pulver. Everitt testified that he had initially received a call from Nunes, who asked whether they could "find a come up," which Everitt explained was slang for a robbery. Yunis Johnson, defendant's girlfriend and the mother of his child, testified that she was with defendant when he received the telephone call from Nunes and that after the call ended, she and defendant went to defendant's home where he retrieved a black handgun – which she had seen in defendant's possession on multiple prior occasions – and placed it in the front pocket of his sweatshirt. Defendant then called Sheiquan Parker and requested that he participate in the planned transaction for "assurance" because he was "a big guy ... [with] weight on him." Johnson drove Nunes, Parker, Everitt and defendant to the City of Schenectady, Schenectady County, where Everitt had arranged to meet Pulver.
Johnson, Everitt, Parker and defendant all testified that they planned to steal the marihuana from Pulver, who testified that he planned to rob Everitt by wrapping multiple plastic shopping bags to make them resemble a package of marihuana that he could throw in the car before grabbing Everitt's money and fleeing. When defendant's group arrived in Schenectady, they drove past the agreed-upon meeting place before dropping defendant, Nunes and Parker off at a nearby convenience store, where they hid in an alley. Johnson testified that when defendant exited the car, he asked "is everybody ready?" and pulled
the gun from his pocket. Johnson and Everitt then drove to the meeting location. When Pulver approached the car accompanied by the victim, Everitt rolled the passenger window down and demanded to see the marihuana. After the victim displayed the package, Everitt asked for the opportunity to smell the marihuana. Pulver and the victim left, ostensibly for the purpose of cutting open the package to permit Everitt to examine the marihuana. Defendant, Nunes and Parker then ran from the alley. Defendant jumped over a snowbank and ran directly towards Pulver and the victim. Pulver testified that neither he nor the victim were armed and that, as defendant approached them, defendant drew a gun and aimed it at them, demanding "give us the weed or give us everything you got." Pulver then yelled "he has it" and threw his hands in the air. Defendant and the victim engaged in a brief struggle during which the victim was struck in the head twice before he died instantly upon being shot once in the neck. Defendant, Nunes and Parker returned to the car and fled the scene. As they drove away, defendant said, "I went to pistol whip him and the gun went off," and told Everitt, "You better not say nothing, white boy." Johnson testified that she disposed of the gun the next day by giving it to an individual she knew only as "Shadow." Defendant testified that when he saw the victim and Pulver walking away from Johnson and Everitt, he exited the alley and confronted them. Defendant further testified that when the victim displayed a gun, he responded by knocking the gun from the victim's hands before retrieving it from the ground. According to defendant, he then swung the gun at the advancing victim in self-defense when it discharged.
When viewing the evidence in the light most favorable to the People, the verdict was based upon legally sufficient evidence. The testimony that defendant possessed a handgun and that he confronted the victim with a demand for property while armed with the gun before striking and killing the victim was legally sufficient to establish beyond a reasonable doubt each of the
elements of the crimes for which he was convicted. Turning to the weight of the evidence, defendant argues that witnesses who testified for the People were not credible and provided contradictory accounts of key events. Although a different verdict would not have been unreasonable because the jury could have credited defendant's testimony that he did not possess a gun and that he had acted in self-defense, the conflicting testimony and credibility issues were "fully explored during cross-examination and, in the final analysis, posed credibility questions for the jury to resolve" ( People v. Wells, 141 A.D.3d 1013, 1023, 35 N.Y.S.3d 795 [2016] [internal quotation marks and citation
omitted], lvs denied 28 N.Y.3d 1183, 1189, 52 N.Y.S.3d 710, 716, 75 N.E.3d 102, 108 [2017] ). When we accord deference to the jury's credibility assessment and view the evidence in a neutral light, we find that the verdict was supported by the weight of the evidence.
Defendant also contends that Supreme Court committed reversible error by allowing the People to impeach Parker, their own witness, on five occasions during direct examination. CPL 60.35 modified the common-law rule against impeachment of one's own witness by allowing a party who calls a witness to use certain prior contradictory statements to impeach the credibility of the witness or to refresh his or her recollection (see People v. Berry, 27 N.Y.3d 10, 17, 29 N.Y.S.3d 234, 49 N.E.3d 703 [2016] ). CPL 60.35 is applicable when a witness gives testimony on a material issue in the case that is contradicted by a prior statement. When the testimony adduced at trial tends to disprove the position of the party who called the witness, the content of the statement may be admitted only for the purpose of impeachment, provided that the court give an appropriate limiting instruction upon receipt of the evidence (see CPL 60.35[1], [2] ; People v. Berry, 27 N.Y.3d at 17, 29 N.Y.S.3d 234, 49 N.E.3d 703 ). However, when the trial testimony regarding a material issue in the case does not...
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