People v. Richardson

• Decision Date: 03 June 2022
• Docket Number: 247 KA 19-00514
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. GAJUAN RICHARDSON, DEFENDANT-APPELLANT.
• Court: New York Supreme Court — Appellate Division

2022 NY Slip Op 03605

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
GAJUAN RICHARDSON, DEFENDANT-APPELLANT.

247 KA 19-00514

Supreme Court of New York, Fourth Department

June 3, 2022

THEODORE W. STENUF, MINOA, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND WINSLOW, JJ.

Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), entered April 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 (two counts).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant was convicted following a jury trial of murder in the second degree (Penal Law § 125.25 [1]) and two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]) for fatally shooting the victim, who at the time was in a vehicle that was stopped at an intersection. According to the People, defendant was in the front passenger seat of a green Ford Explorer that pulled up alongside the victim's vehicle and he fired six shots, striking the victim once in the chest. Defendant contends that his attorney was ineffective for failing to request a missing witness charge for two people who were in the vehicle with the victim when he was shot but who did not testify at trial. We reject that contention inasmuch as there is no indication in the record that the witnesses, both of whom refused to cooperate with the police, were in the People's control, and thus the request would have had little chance of success (see People v Trowell, 172 A.D.3d 1112, 1113 [2d Dept 2019], lv denied 33 N.Y.3d 1074 [2019]; People v Smith, 157 A.D.3d 978, 982 [3d Dept 2018], lv denied 31 N.Y.3d 1078 [2018]; see generally People v Wilson, 120 A.D.3d 1531, 1534 [4th Dept 2014], affd 28 N.Y.3d 67 [2016], rearg denied 28 N.Y.3d 1158 [2017]).

Even assuming, arguendo, that there was a legal basis for County Court to give a missing witness charge, defense counsel's failure to request the charge, standing alone, was not" 'so egregious and prejudicial' as to deprive defendant of a fair trial" (People v Cummings, 16 N.Y.3d 784, 785 [2011], cert denied 565 U.S. 862 [2011], quoting People v Turner, 5 N.Y.3d 476, 480 [2005]; see generally People v Sherman, 182 A.D.3d 987, 988 [4th Dept 2020], lv denied 35 N.Y.3d 1048 [2020]). Viewing the evidence, the law, and the circumstances of this case as a whole and as of the time of representation, we conclude that defendant was afforded meaningful representation (see People v Baldi, 54 N.Y.2d 137, 147 [1981]).

Defendant further contends that the court erred in admitting in evidence a firearm, which the People alleged was the murder weapon, on the ground that it was not relevant to any material issue. We reject that contention. "Evidence is relevant if it has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence" (People v Scarola, 71 N.Y.2d 769, 777 [1988]). Here, the firearm at issue contained a latent print that matched defendant's palm print, and a prosecution witness testified that defendant admitted to him that defendant used that gun to shoot the victim. In our view, evidence that defendant's palm print was on the firearm when it was found by the police several weeks after the shooting is relevant...