People v. Ross

• Decision Date: 07 October 1992
• Citation: 588 N.Y.S.2d 463,186 A.D.2d 1006
• Parties: PEOPLE of the State of New York, Respondent, v. Barry Mark ROSS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 463

588 N.Y.S.2d 463

186 A.D.2d 1006

PEOPLE of the State of New York, Respondent, v. Barry Mark ROSS, Appellant.

Supreme Court, Appellate Division Fourth Department.

Oct. 7, 1992.

Gerald T. Barth by W. Benjamin Coffin, Syracuse, for appellant.

William J. Fitzpatrick by Gary Kelder, Syracuse, for respondent.

Before DENMAN, P.J., and BOOMER, LAWTON, FALLON and DOERR, JJ.

MEMORANDUM:

Defendant was convicted of murder in the second degree and criminal possession of a weapon in the second degree in the fatal shooting of his girlfriend. We reject defendant's argument that the circumstantial evidence adduced at trial failed to establish his guilt beyond a reasonable doubt. Viewing the proof in the light most favorable to the People and giving the People the benefit of every reasonable inference to be drawn therefrom (see, People v. Marin, 65 N.Y.2d 741, 742, 492 N.Y.S.2d 16, 481 N.E.2d 556), we conclude that the facts from which the inference of defendant's guilt are drawn are inconsistent with innocence and exclude to a moral certainty every other reasonable hypothesis (see, People v. Lewis, 64 N.Y.2d 1111, 1112, 490 N.Y.S.2d 166, 479 N.E.2d 802). Nor is the verdict against the weight of the evidence. Weighing "the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn" therefrom, we cannot conclude that the jury failed to give the evidence the weight it should be accorded (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

The trial court did not err by admitting into evidence a sketch drawn by a witness prior to any police intervention. A prosecution witness had viewed a series of events earlier on the day the victim was murdered, to which he had attached no pressing significance. After seeing a report concerning the murder on the evening news that same night, the witness realized the significance of his earlier observations and drew a picture of the man he had seen. The witness later identified defendant as that man. Defendant argues that the sketch is similar to a composite sketch, which is not admissible on the People's direct case (see, People v. Griffin, 29 N.Y.2d 91, 93, 323 N.Y.S.2d 964, 272 N.E.2d 477; People v. Ivey, 83 A.D.2d 788, 443 N.Y.S.2d 452). We disagree. A composite sketch is not admissible because of the potential suggestiveness of having a police artist interpret and possibly influence the perceptions of the witness. Here, the witness, on his own, made the sketch with no police intervention. The situation presented here is better analogized to one where the witness testifies concerning a description he or she gave to the police before any official identification procedures occurred. In People v. Huertas, 75 N.Y.2d 487, 554 N.Y.S.2d 444, 553 N.E.2d 992), the Court of Appeals held that, in a case where identity is the critical issue, a witness' earlier description is admissible to "assist the jury in evaluating the degree to...