People v. Wells

• Decision Date: 28 July 2016
• Citation: 141 A.D.3d 1013,35 N.Y.S.3d 795,2016 N.Y. Slip Op. 05669
• Parties: The PEOPLE of the State of New York, Respondent, v. James WELLS, Also Known as Ho, Also Known as Eightcho, Appellant.
• Court: New York Supreme Court — Appellate Division

141 A.D.3d 1013
35 N.Y.S.3d 795
2016 N.Y. Slip Op. 05669

The PEOPLE of the State of New York, Respondent,
v.
James WELLS, Also Known as Ho, Also Known as Eightcho, Appellant.

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

July 28, 2016.

35 N.Y.S.3d 798

Matthew C. Hug, Albany, for appellant.

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

Before: GARRY, J.P., EGAN JR., LYNCH, DEVINE and MULVEY, JJ.

GARRY, J.

141 A.D.3d 1013

Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered June 20, 2013 in Schenectady County, upon a verdict convicting defendant of the crimes of murder in the second degree, criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree (two counts), reckless endangerment in the

141 A.D.3d 1014

first degree, unlawful imprisonment in the first degree, tampering with physical evidence and endangering the welfare of a child (three counts).

In June 2011, defendant, then 31 years old, attended a party in the City of Schenectady, Schenectady County, together with several other adult males. The majority of the large group of partygoers were teenagers. Upon discovering that car keys belonging to a vehicle rented by one of defendant's companions had disappeared, defendant and his companions interrupted the party and began to physically search the guests for the missing keys before allowing them to leave. Some of the guests objected. An altercation ensued, in which the 15–year–old victim was shot and killed.

Defendant was arrested and charged with the crimes of murder in the second degree, criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree (two counts), reckless endangerment in the first degree, unlawful imprisonment in the first degree, tampering with physical evidence and endangering the welfare of a child (three counts). Defendant's pretrial omnibus motion sought, as pertinent here, to suppress identification testimony and to sever three counts of the indictment. County Court (Drago, J.) denied the motion to sever and, following a combined Wade/Huntley hearing, denied defendant's motion to suppress identification testimony. Following a jury trial, defendant was convicted as charged. Supreme Court (Coccoma, J.) denied defendant's CPL 330.30 motion to set aside the verdict and sentenced him, as a second felony offender, to an aggregate prison term of 30 ½ years to life, to be followed by five years of postrelease supervision. Defendant appeals.

Initially, we reject defendant's assertion that the charge of reckless endangerment in the first degree was duplicitous.

35 N.Y.S.3d 799

¹ An indictment count is void for duplicity when it charges more than one offense (see CPL 200.30[1] ; People v. Alonzo, 16 N.Y.3d 267, 269, 920 N.Y.S.2d 302, 945 N.E.2d 495 [2011] ; People v. Whitehead, 130 A.D.3d 1142, 1143, 13 N.Y.S.3d 642 [2015], lv. denied 26 N.Y.3d 1043, 22 N.Y.S.3d 173, 43 N.E.3d 383 [2015] ). However, an indictment may charge multiple acts in a single count when the acts constitute a continuing offense and the charged crime, by its nature, may be committed by multiple acts occurring over a period of time (see

141 A.D.3d 1015

People v. Keindl, 68 N.Y.2d 410, 421–422, 509 N.Y.S.2d 790, 502 N.E.2d 577 [1986] ; People v. Flanders, 111 A.D.3d 1263, 1265, 974 N.Y.S.2d 692 [2013], affd. 25 N.Y.3d 997, 10 N.Y.S.3d 169, 32 N.E.3d 384 [2015] ; see also People v. Hernandez, 235 A.D.2d 367, 368, 653 N.Y.S.2d 322 [1997], lv. denied 89 N.Y.2d 1012, 658 N.Y.S.2d 250, 680 N.E.2d 624 [1997] ).

Relative to this charge, to establish that defendant was guilty of reckless endangerment in the first degree, the People were required to prove that, “under circumstances evincing a depraved indifference to human life, he recklessly engage[d] in conduct which create[d] a grave risk of death to another person” (Penal Law § 120.25 ). The indictment count charged only one act that could have been found to create a grave risk of death—the act of firing multiple gunshots at close range in a crowded stairwell. The other charged acts included interrupting the teenagers' party, bullying and threatening the young guests, accusing them of stealing or hiding the missing car keys, threatening to strip search them and forcing them to submit to physical searches, blocking them from leaving, assaulting some of them, fighting with guests on an interior staircase and finally pulling out one or more large-caliber handguns and, without warning, firing gunshots. These acts were part of a continuous course of conduct that led up to the shooting and, taken together with the act of firing the handgun, established the separate element of the crime requiring proof that defendant acted “under circumstances evincing a depraved indifference to human life” (Penal Law § 120.25 ; see People v. Flanders, 111 A.D.3d at 1265, 974 N.Y.S.2d 692 ). There was no uncertainty as to the conduct that underlay the jury's unanimous verdict (compare People v. Estella, 107 A.D.3d 1029, 1031–1032, 967 N.Y.S.2d 195 [2013], lvs. denied 21 N.Y.3d 1042, 1046, 972 N.Y.S.2d 539, 995 N.E.2d 855 [2013] ; People v. Brammer, 189 A.D.2d 885, 885–886, 592 N.Y.S.2d 761 [1993], lvs. denied 81 N.Y.2d 967, 977, 598 N.Y.S.2d 769, 615 N.E.2d 226 [1993] ), and we find that the count was not duplicitous.

County Court properly denied defendant's motion to sever counts 8, 10 and 11 of the indictment.² “Offenses are joinable if, among other things, they are based upon different criminal transactions but defined by the same or similar statutory

35 N.Y.S.3d 800

provisions, or if proof of either offense would be material and admissible as evidence-in-chief at the trial of the other offense” (People v. Rogers, 94 A.D.3d 1246, 1248, 942 N.Y.S.2d 260 [2012] [citation omitted], lv. denied 19 N.Y.3d 977, 950 N.Y.S.2d 359, 973 N.E.2d 769 [2012] ; see CPL 200.20[2][b], [c] ; People v. Raucci, 109 A.D.3d 109, 117, 968 N.Y.S.2d 211 [2013], lv. denied 22 N.Y.3d 1158, 984 N.Y.S.2d 642, 7 N.E.3d 1130 [2014] ). Count 8 charged defendant with criminal possession of

141 A.D.3d 1016

a weapon in the third degree based upon his alleged possession of firearms during the 15–day period immediately before the shooting at 811 Bridge Street in Schenectady, which was defendant's residence at the time and was located across the street from 730 Bridge Street, where the party took place. Counts 10 and 11 charged defendant with endangering the welfare of a child at 811 Bridge Street between December 2010 and March 2011 based upon defendant's dangerous activities in the presence of children who also resided there, including keeping drugs, loaded handguns and ammunition in a child's residence, using the residence as a base for drug-dealing operations and displaying one or more loaded guns to a child.

These counts were premised upon the same statutes that formed the basis of counts 4 and 9, which charged criminal possession of a weapon in the third degree and endangering the welfare of a child based upon defendant's conduct at the party (see Penal Law §§ 260.10[1] ; 265.02[1] ). When offenses are joined solely because they are defined by similar statutory provisions, severance may be granted in the interest of justice upon a showing of good cause; however, a court has no discretion to do so if other grounds for joinder exist (see CPL 200.20[3] ; People v. Rogers, 94 A.D.3d at 1248, 942 N.Y.S.2d 260 ). Here, County Court found another ground for joinder, in that proof of the charges that defendant sought to sever was “material and admissible as [evidence-in-chief] upon [the] trial of the [remaining charges]” (CPL 200.20[2][b] ; see People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083 [1987] ; People v. Cherry, 46 A.D.3d 1234, 1236, 850 N.Y.S.2d 645 [2007], lv. denied 10 N.Y.3d 839, 859 N.Y.S.2d 398, 889 N.E.2d 85 [2008] ). The proof supporting counts 8, 10 and 11 of the indictment included evidence that defendant possessed several guns during the period shortly before the party—including several firearms that defendant allegedly stored at 811 Bridge Street and showed to a child who resided there, a .357 revolver that defendant allegedly possessed and displayed on the night before the shooting occurred, and a .44 revolver that he allegedly purchased on the day of the shooting. This evidence was material and relevant to show defendant's possession of and access to the .44 revolver with which he allegedly shot the victim and the .357 revolver that he was also charged with possessing at the party (see People v. Burnell, 89 A.D.3d 1118, 1121, 931 N.Y.S.2d 776 [2011], lv. denied 18 N.Y.3d 922, 942 N.Y.S.2d 461, 965 N.E.2d 963 [2012] ; People v. Lee, 80 A.D.3d 877, 880, 914 N.Y.S.2d 415 [2011], lvs. denied 16 N.Y.3d 832, 833, 834, 921 N.Y.S.2d 197, 946 N.E.2d 185 [2011] ; People v. Portee, 56 A.D.3d 947, 950, 867 N.Y.S.2d 564 [2008], lv. denied 12 N.Y.3d 820, 881 N.Y.S.2d 27, 908 N.E.2d 935 [2009] ; com...