People v. Terry

• Citation: 196 A.D.3d 840,149 N.Y.S.3d 705
• Decision Date: 08 July 2021
• Docket Number: 109778
• Parties: The PEOPLE of the State of New York, Respondent, v. Clarence TERRY IV, Also Known as Kenny, Appellant.
• Court: New York Supreme Court — Appellate Division

196 A.D.3d 840
149 N.Y.S.3d 705

The PEOPLE of the State of New York, Respondent,
v.
Clarence TERRY IV, Also Known as Kenny, Appellant.

109778

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

Calendar Date: May 27, 2021
Decided and Entered: July 8, 2021

149 N.Y.S.3d 707

William T. Morrison, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Lynch, J.P., Clark, Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

196 A.D.3d 840

Appeal from a judgment of the County Court of Schenectady County (Caruso, J.), rendered July 14, 2017, upon a verdict convicting defendant of the crimes of attempted murder in the second degree, assault in the first degree, criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree.

On July 12, 2016, the victim was shot in the neck while returning to the home of his fiance´e. At some point the fiance´e indicated to police that she believed that defendant, the father of two of her children, may have been the shooter. As a result, the police focused their attention on him and ultimately took him into custody on August 25, 2016. He was thereafter charged with attempted murder in the second degree, assault in the first degree, criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree. Following a jury trial, defendant was convicted of all counts. County Court thereafter sentenced defendant to concurrent prison terms of 20 years, followed by five years of postrelease supervision, for his convictions of attempted murder in the second degree, assault in the first degree and criminal use of a firearm in the first degree, and to a lesser concurrent term on the remaining conviction. The court also directed that all of the sentences are to run concurrently. The court also issued a 28–year full stay

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away order of protection in the victim's favor. Defendant appeals.

Defendant challenges the verdict as unsupported by legally

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sufficient evidence and against the weight of the evidence, arguing primarily that the People's proof – which was largely circumstantial in nature – failed to establish his identity as the shooter beyond a reasonable doubt. "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[s] charged" ( People v. Vandenburg, 189 A.D.3d 1772, 1772, 136 N.Y.S.3d 549 [2020] [internal quotation marks and citations omitted], lv denied 36 N.Y.3d 1054, 140 N.Y.S.3d 873, 164 N.E.3d 960 [2021] ; see People v. McCabe, 182 A.D.3d 772, 772–773, 122 N.Y.S.3d 757 [2020] ; People v. Glover, 160 A.D.3d 1203, 1204, 74 N.Y.S.3d 822 [2018] ). "When undertaking a weight of the evidence review, we must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and, if not, then weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" ( People v. Vandenburg, 189 A.D.3d at 1772–1773, 136 N.Y.S.3d 549 [internal quotation marks, brackets and citations omitted]; see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; People v. Lukosavich, 189 A.D.3d 1895, 1896, 135 N.Y.S.3d 685 [2020] ; People v. Forney, 183 A.D.3d 1113, 1113–1114, 124 N.Y.S.3d 732 [2020], lv denied 35 N.Y.3d 1065, 129 N.Y.S.3d 397, 152 N.E.3d 1198 [2020] ). " ‘When conducting this review, we consider the evidence in a neutral light and defer to the jury's credibility assessments’ " ( People v. Kelsey, 174 A.D.3d 962, 962, 107 N.Y.S.3d 150 [2019], lv denied 34 N.Y.3d 982, 113 N.Y.S.3d 671, 137 N.E.3d 41 [2019], cert denied ––– U.S. –––, 141 S.Ct. 2607, 209 L.Ed.2d 738 [May 3, 2021], quoting People v. Gill, 168 A.D.3d 1140, 1140–1141, 90 N.Y.S.3d 392 [2019] ). Finally, we do not distinguish between direct or circumstantial evidence in conducting a legal sufficiency and/or weight of the evidence review (see People v. Pierre, 162 A.D.3d 1325, 1327, 78 N.Y.S.3d 518 [2018], lv denied 32 N.Y.3d 1007, 86 N.Y.S.3d 765, 111 N.E.3d 1121 [2018] ; People v. Tunstall, 149 A.D.3d 1249, 1252, 51 N.Y.S.3d 689 [2017], lv denied 30 N.Y.3d 1023, 70 N.Y.S.3d 456, 93 N.E.3d 1220 [2017] ; People v. Venkatesan, 295 A.D.2d 635, 636, 743 N.Y.S.2d 615 [2002], lv denied 99 N.Y.2d 565, 754 N.Y.S.2d 218, 784 N.E.2d 91 [2002], cert denied 549 U.S. 854, 127 S.Ct. 126, 166 L.Ed.2d 94 [2006] ).

As relevant here, "[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he [or she] engages in conduct which tends to effect the commission of such crime" ( Penal Law § 110.00 ). "A person is guilty of murder in the second degree when ... [w]ith intent to cause the death of another person, he [or she] causes the death of such person" ( Penal Law § 125.25[1] ). "A person is guilty of assault in the first degree when ... [w]ith intent to cause serious physical

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injury to another person, he [or she] causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument" ( Penal Law § 120.10[1] ).¹ "The intent to

149 N.Y.S.3d 709

kill may be inferred from the surrounding circumstances and a defendant's actions" ( People v. White–Span, 182 A.D.3d 909, 910, 122 N.Y.S.3d 818 [2020] [internal quotation marks, brackets and citations omitted], lv denied 35 N.Y.3d 1071, 129 N.Y.S.3d 381, 152 N.E.3d 1183 [2020] ). "Criminal intent may be inferred from the totality of the circumstances or from the natural and probable consequences of the defendant's conduct" ( People v. Conway, 179 A.D.3d 1218, 1219, 116 N.Y.S.3d 118 [2020] [internal quotation marks, ellipsis, brackets and citations omitted], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 288, 147 N.E.3d 558 [2020] ; see People v. Pine, 126 A.D.3d 1112, 1114, 4 N.Y.S.3d 746 [2015], lv denied 27 N.Y.3d 1004, 38 N.Y.S.3d 113, 59 N.E.3d 1225 [2016] ). " ‘Serious physical injury’ means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ" ( Penal Law § 10.00[10] ).

A witness testified that, on the day of the shooting, he looked out of his bedroom window and observed the victim walking down the street wearing a white shirt, jeans and a red brimmed cap. The witness saw the victim stop on the street, heard a single gunshot² and saw the victim fall to the ground on his back, roll onto his left side, and crawl out of the witness's line of sight. The witness testified that the victim's shirt was stained with blood. The police were called and directed to the scene, whereupon they recovered the victim's cap and observed spots of blood on the ground. The victim testified that he had arrived at his fiance´e's home the night before the shooting. In the morning hours before the shooting, he took his fiance´e to work and returned to her home to care for her children and his child. As he and the children were making lunch in the kitchen, which is situated towards the rear of the house, defendant, known to the victim as the father of two of his fiance´e's children, started banging on the front window of the house demanding to see his daughter and son. Defendant told the victim that he was taking the children with him and did so, despite

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knowing that defendant's visit had not been prearranged with the children's mother and despite the reluctance of defendant's daughter to go with him. The victim testified that he took the remaining children to their godparents’ house to wait for the other children to be returned. The victim testified that he returned to the house, parked the car in front of the house and, while walking towards the back gate, "a shot rang out" and "[he] felt an impact in [his] back." He recalled that he fell to the ground, laid there for a few seconds and got into the car and drove to his fiance´e's job. The victim was then transported to the hospital, suffering from a gunshot wound to the back of his neck, and underwent surgery to remove any fragments or debris that could cause infection. The injuries sustained by the victim include permanent scarring, weakened mobility in his left arm, and numbness from his jaw to his chest on the left side of his body.

The testimony of the victim's fiance´e confirmed that the victim had arrived the previous evening and had been healthy in

149 N.Y.S.3d 710

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