Opinion
2017–08453 Ind. No. 6013/15
12-28-2022
The PEOPLE, etc., respondent, v. Ronald WILLIAMS, appellant.
Twyla Carter, New York, NY (Denise Fabiano of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Rachel Raimondi of counsel), for respondent.
Twyla Carter, New York, NY (Denise Fabiano of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Rachel Raimondi of counsel), for respondent.
BETSY BARROS, J.P., REINALDO E. RIVERA, LARA J. GENOVESI, JANICE A. TAYLOR, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent M. Del Giudice, J.), rendered July 6, 2017, convicting him of attempted murder in the second degree (four counts), upon a jury verdict, and sentencing him to consecutive determinate terms of imprisonment of 25 years to be followed by a period of postrelease supervision of 5 years on each conviction of attempted murder in the second degree.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by providing that the sentences imposed shall run concurrently with each other; as so modified, the judgment is affirmed.
The defendant and several accomplices were charged under an acting in concert theory with, inter alia, four counts of attempted murder in the second degree and two counts of criminal possession of a weapon in the second degree, stemming from their collective involvement in the August 3, 2015 nighttime shooting of several individuals in front of a residence in the Red Hook neighborhood of Brooklyn. The defendant, who was tried with his fellow accomplices at a joint trial before a single jury, was convicted of four counts of attempted murder in the second degree and acquitted of the remaining charges.
The Supreme Court providently exercised its discretion in denying the defendant's request to admit into evidence as declarations against penal interest certain out-of-court statements made by his codefendants to law enforcement officials. The portions of the statements that the defendant sought to admit did not directly inculpate the subject codefendants (see People v. Ennis, 11 N.Y.3d 403, 412–413, 872 N.Y.S.2d 364, 900 N.E.2d 915 ; People v. Brensic, 70 N.Y.2d 9, 14, 517 N.Y.S.2d 120, 509 N.E.2d 1226 ; People v. Gilliard, 146 A.D.3d 980, 46 N.Y.S.3d 646 ). Rather, the statements were made under circumstances which suggest that they were intended to minimize the subject codefendants’ criminal involvement (see People v. Gilliard, 146 A.D.3d at 980, 46 N.Y.S.3d 646 ). Since the statements were properly excluded as inadmissible hearsay, the defendant's contention that his constitutional right to present a defense was violated based on the exclusion of this evidence is without merit (see People v. Burns, 6 N.Y.3d 793, 794–795, 811 N.Y.S.2d 297, 844 N.E.2d 751 ; People v. Gilliard, 146 A.D.3d at 980, 46 N.Y.S.3d 646 ; People v. Xing Chen, 117 A.D.3d 762, 763, 985 N.Y.S.2d 158 ).
The Supreme Court providently exercised its discretion in denying the defendant's request to admit into evidence the results of certain DNA tests of material in the interior of the getaway vehicle used in the shooting. Under the particular circumstances of this case, the DNA test results "were not relevant as they did not tend to prove the existence or nonexistence of a material fact directly at issue and any probative value was outweighed by the possible prejudicial impact on the jury" ( People v. Melendez, 175 A.D.3d 714, 715, 105 N.Y.S.3d 304 ). The defendant's contention that his constitutional right to present a defense was violated based on the exclusion of this evidence is without merit.
The defendant's contention that the Supreme Court committed reversible error by failing to reopen the Wade hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 ) mid-trial to address the viewing of his photograph by an eyewitness victim prior to her in-court identification of the defendant as one of the shooters is unpreserved for appellate review (see CPL 470.05[2] ; People v. Guzman, 175 A.D.3d 564, 565, 104 N.Y.S.3d 912 ), and, in any event, without merit (see People v. Williams, 128 A.D.3d 1522, 8 N.Y.S.3d 838 ). Further, contrary to the defendant's contention, the court correctly determined that the subject eyewitness was sufficiently familiar with the defendant prior to the shooting incident, such that she was impervious to suggestiveness, and, therefore, her pretrial identification of the defendant as one of the shooters was merely confirmatory (see People v. Rodriguez, 79 N.Y.2d 445, 583 N.Y.S.2d 814, 593 N.E.2d 268 ; People v. Ellis, 198 A.D.3d 674, 675, 155 N.Y.S.3d 189 ; People v. Carmona, 185 A.D.3d 600, 126 N.Y.S.3d 705, mod 37 N.Y.3d 1016, 152 N.Y.S.3d 872, 174 N.E.3d 1246 ).
Contrary to the defendant's contention, the Supreme Court properly permitted a detective to testify as an expert regarding the meaning of certain coded language used in recorded prison telephone calls between the defendant and a third party, as the language at issue was beyond the ken of the ordinary juror. The expert testimony did not go beyond explaining the street terminology used in the telephone calls and did not infringe on the jury's fact-finding function as the expert did not directly express opinions about the ultimate issues in the case (see People v. Inoa, 25 N.Y.3d 466, 472, 13 N.Y.S.3d 329, 34 N.E.3d 839 ; People v. Goldman, 189 A.D.3d 698, 139 N.Y.S.3d 48 ; People v. Anderson, 149 A.D.3d 1407, 1413, 54 N.Y.S.3d 176 ; People v. Williams, 146 A.D.3d 410, 46 N.Y.S.3d 9 ; People v. Blackman, 118 A.D.3d 1148, 987 N.Y.S.2d 510 ).
The defendant's contention that the jury verdict finding him guilty of attempted murder in the second degree and acquitting him of criminal possession of a weapon in the second degree was repugnant is not preserved for appellate review, as the defendant failed to raise before the formal discharge of the jury at trial his current specific contentions raised on appeal (see People v. Alfaro, 66 N.Y.2d 985, 499 N.Y.S.2d 378, 489 N.E.2d 1280 ; People v. Alman, 185 A.D.3d 714, 126 N.Y.S.3d 730 ; People v. Phillips, 68 A.D.3d 1137, 1138–1139, 892 N.Y.S.2d 157 ). In any event, the defendant's contention is without merit. "A verdict is repugnant only if, when viewed in light of the elements of each crime as charged to the jury, it is legally impossible—under all conceivable circumstances—for the jury to have convicted the defendant on one count but not the other" ( People v. Alman, 185 A.D.3d at 716, 126 N.Y.S.3d 730 [internal quotation marks omitted]; see People v. Muhammad, 17 N.Y.3d 532, 538–539, 935 N.Y.S.2d 526, 959 N.E.2d 463 ; People v. Sims, 199 A.D.3d 841, 156 N.Y.S.3d 436 ; People v. Granston, 259 A.D.2d 760, 761, 688 N.Y.S.2d 172 ). Here, acquittals on the charges of criminal possession of a weapon in the second degree was not repugnant to the convictions of attempted murder in the second degree, as the weapon possession charges contain essential elements that the attempted murder charges do not (see People v. Johnson, 197 A.D.3d 725, 153 N.Y.S.3d 156 ; People v. Francois, 85 A.D.3d 813, 925 N.Y.S.2d 529 ; People v. Graham, 307 A.D.2d 935, 762 N.Y.S.2d 889 ).
The sentence imposed was excessive to the extent indicated herein (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contention is unpreserved for appellate review (see CPL 470.05[2] ) and, in any event, without merit.