People v. Sheppard

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: GARRY
• Citation: People v. Sheppard, 2014 NY Slip Op 4982, 119 A.D.3d 986, 989 N.Y.S.2d 168 (N.Y. App. Div. 2014)
• Decision Date: 03 July 2014
• Parties: The PEOPLE of the State of New York, Respondent, v. Tarrant J. SHEPPARD, Appellant.

119 A.D.3d 986

989 N.Y.S.2d 168

2014 N.Y. Slip Op. 04982

The PEOPLE of the State of New York, Respondent,

v.Tarrant J. SHEPPARD, Appellant.

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

July 3, 2014.

Donna C. Chin, Ithaca, for appellant.

Gwen Wilkinson, District Attorney, Ithaca (Daniel Johnson of counsel), for respondent.

Before: STEIN, J.P., McCARTHY, GARRY, LYNCH and DEVINE, JJ.

GARRY, J.

Appeals (1) from a judgment of the County Court of Tompkins County (Rowley, J.), rendered August 14, 2013, which resentenced defendant following his conviction of the crime of criminal possession of a weapon in the third degree, and (2) by permission, from an order of said court, entered October 17, 2013, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In October 2003, Enrique Chavez died after he was shot in his apartment in the City of Ithaca, Tompkins County. Defendant was one of several individuals who were suspected of involvement, but no arrests were made at that time. Several years later, Ismail Abdur–Razzaaq and his brother, Umar Abdur–Razzaaq, implicated defendant in the shooting as part of a cooperation agreement related to pending federal charges. Defendant was thereafter charged with manslaughter in the second degree, criminally negligent homicide, criminal possession of a weapon in the third degree and tampering with physical evidence. Following a jury trial, he was acquitted of all charges except criminal possession of a weapon in the third degree. His motion to set aside the verdict pursuantto CPL 330.30 was denied, and he was sentenced as a second felony offender to the statutory maximum prison term of 3 1/2 to 7 years.

Thereafter, defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction, and County Court denied the motion. He appealed from the judgment of conviction and the denial of this motion. While that appeal was pending, defendant moved again pursuant to CPL 440.10 to vacate the judgment of conviction based upon newly discovered evidence. Before the second motion was decided, this Court affirmed the denial of the first CPL 440.10 motion, modified the judgment of conviction by vacating the sentence, and remitted the matter for resentencing (107 A.D.3d 1237, 967 N.Y.S.2d 498 [2013],lv. denied22 N.Y.3d 1203, 986 N.Y.S.2d 423, 9 N.E.3d 918 [2014] ). County Court then resentenced defendant to the same prison term and denied his second CPL 440.10 motion, without a hearing. Defendant now appeals from the judgment that resentenced him and, by permission, from the order denying the second CPL 440.10 motion.

Defendant contends that his sentence—the maximum permissible period of confinement for a second felony offender convicted of a class D felony ( seePenal Law §§ 70.06[3][d]; [4][b]; 265.02)—is harsh and excessive in view of his relatively minimal criminal history and long-standing issues with substance abuse. However, the record reveals that County Court specifically considered these factors and nonetheless concluded that the maximum term was appropriate, based upon defendant's failure to take responsibility for the instant offense and his history of repeated failures to take advantage of or comply with opportunities for substance abuse treatment. We find no abuse of the court's discretion in this regard or any extraordinary circumstances warranting a reduction in the interest of justice ( see People v. Dawson, 110 A.D.3d 1350, 1353, 973 N.Y.S.2d 850 [2013];People v. Ashley, 45 A.D.3d 987, 989, 845 N.Y.S.2d 539 [2007],lv. denied10 N.Y.3d 761, 854 N.Y.S.2d 323, 883 N.E.2d 1258 [2008];People v. Abbott, 275 A.D.2d 481, 484, 711 N.Y.S.2d 611 [2000],lv. denied96 N.Y.2d 731, 722 N.Y.S.2d 798, 745 N.E.2d 1021 [2001] ).

Defendant next contends that County Court erred in denying his second motion pursuant to CPL 440.10 to vacate the judgment of conviction. Contrary to defendant's contention, the bench decision in which the court set forth the reasons for denying the motion, as amplified by the court's comments during argument on the motion, was sufficient to comply with the statutory requirement to “set forth on the record [the court's] findings of fact, its conclusions of law and the reasons for its determination” (CPL 440.30[7]; see People v. Watkins, 79 A.D.3d 1648, 1648–1649, 913 N.Y.S.2d 620 [2010],lv. denied16 N.Y.3d 800, 919 N.Y.S.2d 517, 944 N.E.2d 1157 [2011] ). Further, upon review, we agree with County Court that two of the three issues raised in the motion had been raised in defendant's first CPL 440.10 motion. As these issues were considered and resolved upon the prior appeal, they are not now properly before us ( seeCPL 440.10[3][b]; People v. Glinton, 74 N.Y.2d 779, 780, 545 N.Y.S.2d 93, 543 N.E.2d 736 [1989];People v. De Oliveira, 223 A.D.2d 766, 769, 636 N.Y.S.2d 441 [1996],lv. denied88 N.Y.2d 1020, 651 N.Y.S.2d 19, 673 N.E.2d 1246 [1996] ).

As for the third issue, defendant relies upon what he contends is newly discovered evidence that creates a probability that the trial verdict would have been more favorable to him if the evidence had been received at trial ( seeCPL 440.10[1][g] ). Defendantsubmitted affidavits from his mother and a private investigator describing statements allegedly made to them after the trial by Jameel Melton, who shared an apartment with Chavez before the shooting. After Chavez was shot in this apartment, police found a holster and ammunition in a purse in Melton's bedroom closet; they also located a user's manual for a .380 caliber handgun in a pair of jeans on the bed in Melton's room, and Melton's fingerprints were identified on this document. Police later found a .380 caliber handgun and loaded magazine on the bank of a nearby creek, and forensic testing revealed that the bullet that struck Chavez had been fired from this weapon. None of this physical evidence was ever linked with defendant's fingerprints or DNA. Shortly after the shooting, Melton told police that he was not in Ithaca at the time of the incident, having taken a bus to New York City earlier that day. He initially denied any knowledge of a weapon, but later acknowledged that he had found a gun in his closet and had handled it before leaving for New York City. Melton did not testify at trial. Ismail Abdur–Razzaaq testified that he gave a .380 caliber gun to defendant, both Abdur–Razzaaq brothers testified that defendant later made incriminating statements, and Diego Bush testified that he saw defendant playfully wrestling with Chavez and poking him with such a weapon just before it went off ( see107 A.D.3d at 1238–1239, 967 N.Y.S.2d 498).

In her affidavit, defendant's mother averred that Melton—then in jail awaiting determination of unrelated criminal charges—told her that he owned the gun that had been used to shoot Chavez, that defendant had neither possession nor knowledge of this gun, and that Melton would be willing to testify to this effect if his attorney approved; she also said that Melton expressed concern that such an admission could result in additional charges against him. Defendant's private investigator stated that, during a meeting with Melton and Melton's counsel in jail, Melton told him that defendant “did not possess and had nothing to do with the gun” and that Melton was willing to testify on this subject. The People responded that they had attempted to investigate these claims but had been told by Melton's counsel that he was unwilling to speak with the People and no longer wanted anything to do with defendant's case. In denying the motion, County Court expressed its belief that the hearsay affidavits of the private investigator and defendant's mother were an insufficient basis for defendant's motion, in view of the fact that Melton himself had not supplied an...