People v. Timmons

• Citation: 910 N.Y.S.2d 290,78 A.D.3d 1241
• Parties: The PEOPLE of the State of New York, Respondent, v. Jermayne TIMMONS, Also Known as Maine, Appellant.
• Decision Date: 04 November 2010
• Court: New York Supreme Court Appellate Division

910 N.Y.S.2d 290 78 A.D.3d 1241 The PEOPLE of the State of New York, Respondent, v. Jermayne TIMMONS, Also Known as Maine, Appellant. Supreme Court, Appellate Division, Third Department, New York. Nov. 4, 2010.

Lee Greenstein, Albany, for appellant.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

Before: MERCURE, J.P., MALONE JR., McCARTHY, GARRY and EGAN JR., JJ.

McCARTHY, J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered March 6, 2009, upon a verdict convicting defendant of the crime of murder in the second degree.

Defendant, who was 15 years old at the time, armed himself with a gun and, along with two neighborhood companions, rode his bike into another neighborhood in theCity of Albany. He and his companions stopped at the intersection of First Street and Judson Street, where they saw three teenaged boys. After a brief "stare down," defendant pulled the gun out of his pocket and the three rival boys began running up First Street. Defendant then fired a shot up First Street, in the direction of the running boys. Seconds later, another unidentified group of boys returned fire, shooting approximately three times at defendant's companions as they fled down First Street while defendant fled on Judson Street. When defendant was at the intersection, the victim, a 10-year-old girl, was on the front steps of her home, located more than a block up First Street from the intersection. A bullet struck her, quickly causing her death.

Defendant was charged as a juvenile offender with intentional murder in the second degree, depraved indifference murder in the second degree, manslaughter in the first degree, manslaughter in the second degree and criminal possession of a weapon in the second degree. County Court denied his motion to dismiss one or both of the murder charges. At trial, the jury convicted defendant of depraved indifference murder in the second degree and criminal possession of a weapon in the second degree.¹ The court sentenced defendant as a juvenile offender to a prison term of 15 years to life. Defendant appeals.

County Court did not err in submitting both murder countsto the jury. While courts should not regularly permit the People to go forward on both intentional and depraved indifference murder as alternate theories, such twin counts may be submitted to the jury in rare instances ( see People v. Suarez, 6 N.Y.3d 202, 215, 811 N.Y.S.2d 267, 844 N.E.2d 721 [2005]; People v. Rollins, 51 A.D.3d 1279, 1281, 858 N.Y.S.2d 474 [2008], lvs. denied 11 N.Y.3d 922, 930, 874 N.Y.S.2d 8, 15, 902 N.E.2d 442, 449 [2009] ). This is one such instance. Defendant could have intended to murder one of the fleeing boys and been found guilty of intentional murder of the victim under a transferred intent theory, or he could have been found to have acted with depraved indifference by shooting a gun on a crowded street. As he could have possessed different mental states with regard to the different potential victims, the court did not err in letting the jury consider both murder counts in the alternative ( see People v. Page, 63 A.D.3d 506, 507-508, 880 N.Y.S.2d 287 [2009], lv. denied 13 N.Y.3d 837, 890 N.Y.S.2d 453, 918 N.E.2d 968 [2009]; People v. Hamilton, 52 A.D.3d 227, 228, 859 N.Y.S.2d 156 [2008], lv. denied 11 N.Y.3d 737, 864 N.Y.S.2d 395, 894 N.E.2d 659 [2008]; People v. Craft, 36 A.D.3d 1145, 1147-1148, 827 N.Y.S.2d 376 [2007], lv. denied 8 N.Y.3d 945, 836 N.Y.S.2d 555, 868 N.E.2d 238 [2007] ).

Defendant's conviction is based upon legally sufficient evidence and is not against the weight of the evidence. Defendant contends that the People failed to prove the element of depraved indifference or that the fatal bullet came from defendant's gun. The Court of Appeals has stated that firing into a crowd and endangering innocent bystanders is a quintessential example of depraved indifference to human life ( see People v. Payne, 3 N.Y.3d 266, 271-272, 786 N.Y.S.2d 116, 819 N.E.2d 634 [2004]; People v. Russell, 91 N.Y.2d 280, 289-290, 670 N.Y.S.2d 166, 693 N.E.2d 193 [1998] ). In his written statement obtainedby the police, defendant admitted possessing a loaded handgun and firing it on a residential street. He also acknowledged that he noticed "7 or 8 other people up First Street," including "an old lady up the street, a couple of other adults and a couple of kids." This testimony was supported by one of his companions, who testified that at the time of the shooting, there were "people everywhere, on the corner, on the street." This evidence was legally sufficient to demonstrate that defendant was aware of the presence of innocent people on the street but callously acted without any regard for their safety or the risk of death to those people when he fired a shot on the crowded street. Although defendant testified that he shot only because he thought one of the other boys was going to pull out a gun and he wanted to scare away the neighborhood rivals, the jury could choose not to accept that alleged justification.

The People sufficiently proved that the fatal shot was fired by defendant. A .45 caliber bullet was removed from the victim's body. A .45 caliber casing was recovered at the intersection where defendant admittedly fired a handgun. An expert testifiedthat a .45 caliber bullet could travel up to a mile and, based on scientific testing, that the bullet recovered from the victim's body struck her at a velocity and trajectory consistent with a bullet traveling the approximately 1,060 feet from the intersection where defendant stood to the stoop where the victim was shot. Numerous witnesses testified that defendant was the only person to shoot up First Street-i.e., in the direction of the victim-and that the shots fired by other people were aimed down First Street. This evidence was legally sufficient to establish that defendant was the person who shot the victim. Defendant testified that the gun he possessed, which was never recovered after he disposed of it, was a .32 caliber revolver rather than a .45 caliber semi-automatic handgun like the weapon that killed the victim. In his statement to police, however, he identified the gun he shot as a semi-automatic. Testimony from other witnesses raised a possibility that the gun may have been a revolver or a different caliber, but that testimony was far from certain. Defendant also testified that he aimed at a boy diagonally on the corner, rather than directly up the street in the direction of the victim, and that he shot downward so that the bullet struck the ground. The jury was free to disbelieve this...