People v. Young

• Decision Date: 14 January 2021
• Docket Number: 110388,109333,108101
• Citation: 190 A.D.3d 1087,139 N.Y.S.3d 718
• Parties: The PEOPLE of the State of New York, Respondent, v. Sylvester YOUNG, Also Known as Rick, Eric S. Young, Slick and Jerome Young, Appellant.
• Court: New York Supreme Court — Appellate Division

190 A.D.3d 1087

139 N.Y.S.3d 718

The PEOPLE of the State of New York, Respondent,

v.Sylvester YOUNG, Also Known as Rick, Eric S. Young, Slick and Jerome Young, Appellant.

108101

109333

110388

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

Calendar Date: December 16, 2020

Decided and Entered: January 14, 2021

Theodore J. Stein, Woodstock, for appellant, and appellant pro se.

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

Before: Garry, P.J., Egan Jr., Mulvey, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

Appeals (1) from a judgment of the County Court of Schenectady County (Murphy III, J.), rendered November 16, 2015, upon a verdict convicting defendant of the crimes of murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree (four counts), criminal possession of a weapon in the third degree (two counts) and tampering with physical evidence (two counts), (2) by permission, from an order of said court, entered March 31, 2017, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, after a hearing, and (3) by permission, from an order of said court (Sira, J.), entered May 16, 2018, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

At approximately 4:50 a.m. on January 25, 2009, police responded to a 911 call of a reported shooting at an unlicensed after-hours bar, formerly known as the Tip Toe Inn, located in the City of Schenectady, Schenectady County. Upon arrival, police encountered Delesia Davidson, standing outside the bar with a gunshot wound to her back, and Jumez Lee, also known as Holiday, lying inside the bar with a gunshot wound to his head. Both victims were transported to the hospital; Davidson recovered from her wounds, but Lee was pronounced dead later that day. Four days later, defendant was arrested on unrelated drug charges and, as part of that investigation, police questioned him regarding the subject shooting, but he denied any involvement.¹ In November 2009, a grand jury was convened with respect to the shooting but, in June 2012, County Court (Drago, J.) granted the People's application to withdraw the case from the grand jury and re-present it to a second grand jury (see CPL 190.75[3] ). The People thereafter re-presented the case to a second grand jury and, in April 2014, defendant was charged in a 10–count indictment with murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree (four counts), criminal possession of a weapon in the third degree (two counts) and tampering with physical evidence (two counts).

Following a seven-week jury trial in 2015, defendant was convicted as charged. He was thereafter sentenced, as a persistent felony offender, to an aggregate prison term of 90 years to life. Defendant moved to vacate the judgment of conviction pursuant to CPL 440.10 and, following a hearing, in March 2017, County Court (Murphy III, J.) denied defendant's motion finding, among other things, that the People's investigation and resulting preindictment delay did not deny defendant his constitutional due process rights or his constitutional right to a speedy trial. Defendant subsequently filed a second CPL 440.10 motion seeking to vacate his judgment of conviction and, in May 2018, County Court (Sira, J.) denied the motion, without a hearing. Defendant appeals from the judgment of conviction and, by permission, from the orders denying his postjudgment motions.²

Defendant contends that the integrity of the grand jury process was impaired as the People abandoned its presentation of the case to a first grand jury and impermissibly re-presented it to a second grand jury without obtaining court authorization (see CPL 190.75[3] ). Pursuant to CPL 190.75(3), the People may not re-present charges – that have either been previously dismissed or withdrawn from the grand jury in such a manner as to constitute a de facto dismissal – to another grand jury unless the court authorizes such re-submission (see People v. Davis, 17 N.Y.3d 633, 637, 935 N.Y.S.2d 561, 959 N.E.2d 498 [2011] ). The People presented the case to the first grand jury on November 6, 2009, presenting the testimony of three witnesses. The People thereafter continued to investigate the case and no additional evidence was presented to the first grand jury. On June 5, 2012, the People submitted an application seeking court authorization (see CPL 190.75[3] ) to withdraw from the first grand jury and re-present to a second grand jury on the ground that they had "acquired substantial new evidence not available ... at the time of the partial presentation to the first grand jury." County Court (Drago, J.) granted the People's application determining that the People's withdrawal from the first grand jury did not constitute a dismissal and that, even if it did, the People had acquired new evidence not previously available to them such that re-presentation to a second jury was appropriate. Thus, contrary to defendant's assertion, the People did, in fact, seek court authorization prior to re-presenting the case to the second grand jury. There being no indication that the People made said application "in anything other than good faith," we discern no error of law in this regard ( People v. Ballowe, 173 A.D.3d 1666, 1668, 103 N.Y.S.3d 207 [2019] [internal quotation marks and citations omitted]; see CPL 190.75[3] ).

Defendant next contends that the jury's verdict is not supported by legally sufficient evidence and is against the weight of the evidence. Defendant failed to preserve his challenge to the legal sufficiency of the evidence, however, as he failed to renew his motion for a trial order of dismissal after resting his case (see People v. Kolupa, 13 N.Y.3d 786, 787, 887 N.Y.S.2d 536, 916 N.E.2d 430 [2009] ; People v. Saunders, 176 A.D.3d 1384, 1385, 111 N.Y.S.3d 445 [2019], lv denied 35 N.Y.3d 973, 125 N.Y.S.3d 12, 148 N.E.3d 476 [2020] ). Nevertheless, inasmuch as defendant has challenged the jury verdict as being against the weight of the evidence, we will necessarily determine as part of said review whether all of the elements of the charged crimes were proven at trial beyond a reasonable doubt (see People v. Trappler, 173 A.D.3d 1334, 1335, 102 N.Y.S.3d 756 [2019], lv denied 34 N.Y.3d 985, 113 N.Y.S.3d 642, 137 N.E.3d 12 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 1281, 206 L.Ed.2d 263 [2020] ). To that end, "[w]hen 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 1772, 1772–73, 136 N.Y.S.3d 549 [2020] [internal quotation marks, brackets and citations omitted] ).

As relevant here, to be found guilty of murder in the second degree (count 1), the People were required to prove that, "[w]ith intent to cause the death of another person, [the defendant] cause[d] the death of such person or of a third person" ( Penal Law § 125.25[1] ). To be found guilty of assault in the first degree (count 2), the People were required to prove that, "[w]ith intent to cause serious physical injury to another person, [the defendant] cause[d] 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] ). With respect to counts 3 and 4, "[a] person is guilty of criminal possession of a weapon in the second degree when ... with intent to use the same unlawfully against another, such person ... possesses a loaded firearm" ( Penal Law § 265.03[1][b] ). With respect to counts 5 and 6, "[a] person is guilty of criminal possession of a weapon in the second degree when ... such person possesses any loaded firearm" outside of his or her home or place of business ( Penal Law § 265.03[3] ). With respect to counts 7 and 8, "[a] person is guilty of criminal possession of a weapon in the third degree when ... such person commits the crime of criminal possession of a weapon in the fourth degree ... and has been previously convicted of any crime" ( Penal Law § 265.02[1] ).³ Finally, with respect to counts 9 and 10, "[a] person is guilty of tampering with physical evidence when ... [b]elieving that certain physical evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent such production or use, he [or she] suppresses it by any act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person" ( Penal Law § 215.40[2] ).

The evidence at trial established that, in 2005, defendant was living in Schenectady selling drugs. In June of that year, defendant was with his friend and fellow gang member, Carl Henley, also known as Boone, when Henley was shot and wounded in Schenectady. Following the shooting, defendant indicated that he intended to seek revenge against Lee, who he blamed for the shooting. Approximately three months later, defendant was the passenger in a vehicle that was stopped for a Vehicle and Traffic Law violation during the course of which he fled the police, dropping a .38 Smith & Wesson handgun out of his pant leg. He was later arrested and admitted that he obtained the weapon "because he had a problem with a guy in Schenectady." He subsequently pleaded guilty to attempted criminal possession of a weapon in the third degree and served two years in prison. Following his release, defendant resumed selling drugs in Schenectady and obtained two .45 caliber pistols.

At approximately 3:20 a.m. on the day of the shooting, de...