People v. Thomas

• Decision Date: 04 April 2013
• Citation: 105 A.D.3d 1068,2013 N.Y. Slip Op. 02284,962 N.Y.S.2d 756
• Parties: The PEOPLE of the State of New York, Respondent, v. Kenneth THOMAS, Appellant.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 1068

962 N.Y.S.2d 756

2013 N.Y. Slip Op. 02284

The PEOPLE of the State of New York, Respondent,

v.Kenneth THOMAS, Appellant.

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

April 4, 2013.

Salvatore C. Adamo, Albany, for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), for respondent.

Before: MERCURE, J.P., SPAIN, McCARTHY and GARRY, JJ.

SPAIN, J.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered September 22, 2010, upon a verdict convicting defendant of the crimes of assault in the first degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.

Defendant's arrest arose from a 2008 shooting outside of a bar in the City of Cohoes, Albany County.¹ Defendant was indicted for attempted murder in the second degree, two counts of assault in the first degree (intentional assault and depraved indifference assault), criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. At trial, the People offered testimony from the victim, police officers and three eyewitnesses; the eyewitnesses, defendant and the victim all knew one another. On stipulation, County Court received in evidence a redacted letter from defendant to the court that was sent—after his plea and before sentencing in the prior proceeding—from the county jail in which he admitted to the shooting but asserted that it was not intentional. The defense called no witnesses. The court granted, in part, defendant's posttrial motion to dismiss ( seeCPL 290.10) the count of depraved indifference assault in the first degree. The jury acquitted him of attempted murder, but found him guilty of the remaining counts. Defendant was then sentenced to an aggregate prison term of 22 years plus five years of postrelease supervision and defendant now appeals.

We affirm. Defendant first asserts that County Court should have granted his posttrial motion to dismiss all charges because the evidence was not legally sufficient and the jury's verdict was against the weight of the credible evidence. Notably, defendant's legal sufficiency arguments with respect to the weapons possession charges are not preserved ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). However, we will necessarily review the sufficiency of all of the proof adduced at trial in the context of resolving defendant's claim that the verdict was against the weight of the evidence ( see People v. Warner, 69 A.D.3d 1052, 1053 n. 1, 893 N.Y.S.2d 359 [2010],lv. denied14 N.Y.3d 894, 903 N.Y.S.2d 782, 929 N.E.2d 1017 [2010] ).

The trial evidence was legally sufficient to demonstrate that defendant committed the crime of intentional assault in the first degree ( seePenal Law § 120.10[1] ). Significantly, defendant admitted in his letter to County Court, “I shot one time” and “dropped the gun and ran,” albeit claiming he did so “out of fear” and “unintentionally.” Moreover, eyewitness testimony, viewed in the light most favorable to the People, demonstrated that defendant intentionally caused serious physical injury to the victim by shooting him with what appeared to be a gun when the two got into a fist fight after exiting a bar. An eyewitness testified that defendant was holding “an object” when the victim “got shot and fell backwards,” and she then saw defendant run away. She and another eyewitness testified that they were nearby when they saw defendant lean down and say “[f]* * * this” or “[f]* * * that,” and they then saw a flash and the victim stumbled back. A third eyewitness testified that he was also near defendant and observed him extend his arm out straight, he then heard a pop and saw a flash by defendant's hand. All three eyewitnesses heard the victim say, “I got popped” after he was shot. The victim testified that he had a fist fight with defendant and, when the victim turned his back, he heard and felt a shot to his back. The parties stipulated that the victim sustained serious physical injuries as a result of a gunshot wound. This evidence was legally sufficient to demonstrate that defendant committed the crime of intentional assault in the first degree ( see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987];People v. Rice, 90 A.D.3d 1237, 1237–1238, 935 N.Y.S.2d 169 [2011],lv. denied18 N.Y.3d 961, 944 N.Y.S.2d 490, 967 N.E.2d 715 [2012] ).

We now turn to defendant's assertion that his convictions are against the weight of the evidence. Here, a different outcome would not have been unreasonable as the eyewitnesses and the victim did not actually see a gun and no gun was ever found ( see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Nonetheless, “weigh[ing] the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from [all of] the testimony” ( People v. Sanchez, 75 A.D.3d 911, 913, 905 N.Y.S.2d 692 [2010],lv. denied15 N.Y.3d 895, 912 N.Y.S.2d 583, 938 N.E.2d 1018 [2010] [internal quotation marks and citations omitted]; see People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), we find that the credible evidence supports the verdict. To the extent that defendant claimed in the letter that he shot the gun “unintentionally” and that he was “not meaning to hurt or kill anyone,” the testimony from the eyewitnessesstrongly supports the contrary conclusion. Thus, viewing the evidence in a neutral light while according deference to the jury as factfinder, defendant's convictions are not against the weight of the evidence.

We are also not persuaded by defendant's pro se argument that he was deprived of the effective assistance of counsel, given that the record—when viewed objectively and in its totality—reflects that he received meaningful representation ( see People v. Cummings, 16 N.Y.3d 784, 785, 919 N.Y.S.2d 500, 944 N.E.2d 1139 [2011],cert. denied––– U.S. ––––, 132 S.Ct. 203, 181 L.Ed.2d 108 [2011];People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). With respect to trial strategy, “counsel's efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective” ( People v. Benevento, 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;see People v. Turner, 5 N.Y.3d 476, 480, 806 N.Y.S.2d 154, 840 N.E.2d 123 [2005] ). Moreover, defendant bears a “high burden” ( People v. Hobot, 84 N.Y.2d 1021, 1022, 622 N.Y.S.2d 675, 646 N.E.2d 1102 [1995] ) to “demonstrate the absence of strategic or other legitimate explanations” for counsel's alleged shortcomings ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];accord People v. Baker, 14 N.Y.3d 266, 270–271, 899 N.Y.S.2d 733, 926 N.E.2d 240 [2010] ).

Counsel consistently pursued the legitimate strategy of disputing the proof that defendant caused the serious physical injury to the victim, he successfully moved to dismiss the count of depraved indifference assault and obtained an acquittal on the attempted murder count. Further, defendant...