People v. Ross

• Citation: 2012 N.Y. Slip Op. 05341,947 N.Y.S.2d 229,97 A.D.3d 843
• Parties: The PEOPLE of the State of New York, Respondent, v. Romondo L. ROSS, Appellant.
• Decision Date: 05 July 2012
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 843

947 N.Y.S.2d 229

2012 N.Y. Slip Op. 05341

The PEOPLE of the State of New York, Respondent,

v.Romondo L. ROSS, Appellant.

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

July 5, 2012.

Maura Kennedy–Smith, Ithaca, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Jeremy V. Murray of counsel), for respondent.

Before: PETERS, P.J., MERCURE, ROSE, LAHTINEN and EGAN JR., JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered August 10, 2009, upon a verdict convicting defendant of the crimes of manslaughter in the first degree, murder in the second degree and attempted murder in the second degree.

On the evening of July 31, 2008, Demetrius Molina and defendant were at a nightclub known as Lando's in the City of Corning, Steuben County, when an altercation occurred between defendant and a group of men from South Carolina—one of whom, it appears, was dating defendant's sister. A few hours later, and as the men from South Carolina were gathered outside the front door of an apartment located at 352 Woodlawn Avenue in the City of Elmira, Chemung County, defendant and Molina, together with certain of their friends, approached on foot. Shortly thereafter, multiple gunshots—emanating from Molina and defendant's group—rang out. Although no one at that address was struck by the gunfire, two of the bullets traveled approximately 273 feet south of that location and penetrated the exterior wall of 347 Woodlawn Avenue. One of those bullets, in turn, struck and killed Maurice Davis, who was asleep in his second-floor master bedroom.

Defendant and Molina thereafter were indicted and charged with two counts of murder in the second degree, attempted murder in the second degree, two counts of criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree. Following separate jury trials, defendant and Molina each were convicted of manslaughter in the first degree (as a lesser included offense of intentional murder in the second degree), depraved indifference murder in the second degree and attempted murder in the second degree ¹ and thereafter were sentenced to aggregate prison terms of 17 1/2 years to life followed by five years of postrelease supervision.

Upon Molina's appeal, we reversed his convictions of manslaughter in the first degree and murder in the second degree under counts 1 and 2 of the underlying indictment, agreeing that County Court erred in charging intentional murder and depraved indifference murder in the conjunctive ( People v. Molina, 79 A.D.3d 1371, 1373–1374, 914 N.Y.S.2d 331 [2010],lv. denied16 N.Y.3d 861, 923 N.Y.S.2d 423, 947 N.E.2d 1202 [2011] ). Defendant now appeals, urging that very ground as a basis for reversal here.

Although defendant admittedly took no exception to the jury charge as given by County Court or raised any objection to the accompanying verdict sheet, we nonetheless deem this to be an appropriate instance in which to exercise our interest of justice jurisdiction to take corrective action ( seeCPL 470.15 [6][a] ). Accordingly, for the reasons set forth in Molina, we reverse defendant's convictions of manslaughter in the first degree and murder in the second degree under counts 1 and 2 of the indictment and remit this matter...