Opinion
973 KA 15–00031
11-09-2018
The PEOPLE of the State of New York, Respondent, v. Dominic FLOWERS, Defendant–Appellant.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT–APPELLANT. DOMINIC FLOWERS, DEFENDANT–APPELLANT PRO SE. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT–APPELLANT.
DOMINIC FLOWERS, DEFENDANT–APPELLANT PRO SE.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of murder in the second degree ( Penal Law § 125.25[2] ), assault in the second degree (§ 120.05[2] ), and two counts each of assault in the first degree (§ 120.10[1], [3] ) and criminal possession of a weapon in the second degree (§ 265.03[1][b]; [3] ). Contrary to defendant's contention in his main and pro se supplemental briefs, the evidence is legally sufficient to establish his identity as one of the people who opened fire on a crowded street, killing one person and injuring two others (see generally People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). The People presented evidence that defendant and a codefendant were driven to the scene of the shooting by defendant's sister. Moments after the two men exited the vehicle, the sister, who testified for the People at trial, heard numerous gunshots, and shortly thereafter the two men rushed back to her vehicle. At that time, defendant's sister observed defendant in possession of a firearm.
Moreover, casings found at the scene established that two different types of firearms were used in proximity to each other and in proximity to the corner where defendant's sister had parked her vehicle. One month later, ammunition matching the brand and caliber of both types of casings was found during the execution of a search warrant at the residence of defendant's mother, which occurred while defendant was present. In our view, " ‘there is a valid line of reasoning and permissible inferences from which a rational jury could have found [defendant's identity] proved beyond a reasonable doubt’ " ( Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Although defendant raises several other challenges to the legal sufficiency of the evidence, he failed to preserve those challenges for our review inasmuch as his motion for a trial order of dismissal was not specifically directed at those grounds (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In any event, we reject those challenges (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), including the instruction that defendant could be found liable as either a principal or an accomplice (see Penal Law § 20.00 ), we conclude that, contrary to defendant's contention in his main and pro se supplemental briefs, the verdict on each count is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Although different findings would not have been unreasonable, we conclude that the jury did not fail to give the evidence the weight it should be accorded (see generally id. ). The jury credited the testimony of defendant's sister, and we defer to the jury's credibility determination under these circumstances (see People v. Washington, 160 A.D.3d 1451, 1452, 72 N.Y.S.3d 876 [4th Dept. 2018] ; People v. Harris, 56 A.D.3d 1267, 1268, 868 N.Y.S.2d 448 [4th Dept. 2008], lv denied 11 N.Y.3d 925, 874 N.Y.S.2d 10, 902 N.E.2d 444 [2009] ).
Before trial, the People submitted a Sandoval application, notifying County Court of their intent to impeach defendant's credibility by questioning him concerning his prior criminal, vicious or immoral acts. The court permitted the People to question defendant concerning the facts and circumstances underlying one prior criminal act and, with respect to a second act, limited the People's questions to the existence of a felony conviction. We conclude that the court did not abuse its broad discretion in its ruling (see generally People v. Smith, 27 N.Y.3d 652, 660, 36 N.Y.S.3d 861, 57 N.E.3d 53 [2016] ), and the court's exercise of discretion "should not be disturbed merely because the court did not provide a detailed recitation of its underlying reasoning ..., particularly where, as here, the basis of the court's decision may be inferred from the parties' arguments" ( People v. Walker, 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994] ; see People v. Wertman, 114 A.D.3d 1279, 1281, 980 N.Y.S.2d 688 [4th Dept. 2014], lv denied 23 N.Y.3d 969, 988 N.Y.S.2d 576, 11 N.E.3d 726 [2014] ; cf. People v. Graham, 107 A.D.3d 1421, 1422, 967 N.Y.S.2d 315 [4th Dept. 2013], affd 25 N.Y.3d 994, 10 N.Y.S.3d 172, 32 N.E.3d 387 [2015] ).
Defendant further contends in his main brief that the court erred in admitting in evidence the ammunition that was recovered during the search of the residence of defendant's mother. Initially we note that, contrary to defendant's contention, his alleged possession of that ammunition does not constitute a prior bad act or a prior uncharged crime and thus is not Molineux evidence (see generally People v. Brewer, 129 A.D.3d 1619, 1620, 12 N.Y.S.3d 453 [4th Dept. 2015], affd 28 N.Y.3d 271, 44 N.Y.S.3d 339, 66 N.E.3d 1057 [2016] ; People v. Anderson, 304 A.D.2d 450, 451, 758 N.Y.S.2d 625 [1st Dept. 2003], lv denied 100 N.Y.2d 592, 595, 766 N.Y.S.2d 167, 170, 798 N.E.2d 351, 354 [2003]; People v. Duggan, 229 A.D.2d 688, 689–690, 645 N.Y.S.2d 158 [3d Dept. 1996], lv denied 88 N.Y.2d 984, 649 N.Y.S.2d 390, 672 N.E.2d 616 [1996] ). Moreover, the court properly exercised its discretion in admitting the ammunition in evidence inasmuch as it "was relevant circumstantial evidence of defendant's [participation in the shooting], specifically because the type [and brand] of ammunition matched the type of weapon [used in the shooting] and [the brand of casings found at the scene]. The connection between the rounds of ammunition and the charges sought to be proved was not so tenuous as to be improbable" ( People v. Vasquez, 214 A.D.2d 93, 104, 631 N.Y.S.2d 322 [1st Dept. 1995], lv denied 88 N.Y.2d 943, 647 N.Y.S.2d 177, 670 N.E.2d 461 [1996], citing People v. Mirenda, 23 N.Y.2d 439, 453, 297 N.Y.S.2d 532, 245 N.E.2d 194 [1969] ; see People v. Gray, 116 A.D.3d 480, 481, 983 N.Y.S.2d 262 [1st Dept. 2014], affd 27 N.Y.3d 78, 29 N.Y.S.3d 888, 49 N.E.3d 1180 [2016] ; cf. People v. Buonincontri, 18 A.D.3d 569, 569, 795 N.Y.S.2d 101 [2d Dept. 2005], affd 6 N.Y.3d 726, 810 N.Y.S.2d 403, 843 N.E.2d 1143 [2005] ).
We reject defendant's contention in his main brief that there was an insufficient foundation for the admission in evidence of a surveillance video obtained from the hospital where the codefendant sought treatment after the shooting. The hospital's director of corporate security, who maintained the building's video recording surveillance system and thus "was familiar with [its] operation" ( People v. Costello, 128 A.D.3d 848, 848, 9 N.Y.S.3d 132 [2d Dept. 2015], lv denied 26 N.Y.3d 927, 17 N.Y.S.3d 90, 38 N.E.3d 836 [2015], reconsideration denied 26 N.Y.3d 1007, 20 N.Y.S.3d 548, 42 N.E.3d 218 [2015] ), testified that the exhibit admitted at trial " ‘truly and accurately represent[ed] what was before the camera’ " on the night of the events ( People v. Patterson, 93 N.Y.2d 80, 84, 688 N.Y.S.2d 101, 710 N.E.2d 665 [1999] ; see also People v. Davis, 28 N.Y.3d 294, 303, 44 N.Y.S.3d 358, 66 N.E.3d 1076 [2016] ).
Defendant further contends in his main brief that he was denied a fair trial by prosecutorial misconduct on summation. That contention is not preserved for our review "inasmuch as defense counsel did not object to certain instances ... and failed to take any further actions such as requesting a curative instruction or moving for a mistrial when his objections were sustained" ( People v. Gibson, 134 A.D.3d 1512, 1512–1513, 23 N.Y.S.3d 520 [4th Dept. 2015], lv denied 27 N.Y.3d 1151, 39 N.Y.S.3d 385, 62 N.E.3d 125 [2016] ; see People v. Tolbert, 283 A.D.2d 930, 931, 723 N.Y.S.2d 916 [4th Dept. 2001], lv denied 96 N.Y.2d 908, 730 N.Y.S.2d 806, 756 N.E.2d 94 [2001] ). In any event, we conclude that the prosecutor's comments were not "so egregious" as to warrant reversal and did not cause "such substantial prejudice to ... defendant that he [was] denied due process of law" ( People v. Mott, 94 A.D.2d 415, 418–419, 465 N.Y.S.2d 307 [4th Dept. 1983] ).
We reject the further contention of defendant in his pro se supplemental brief that he was denied effective assistance of counsel. Insofar as defendant contends that defense counsel failed to interview witnesses, did not consult with defendant, did not supply defendant with discoverable material and improperly advised defendant not to testify, those contentions are based on matters outside the record and are not reviewable on direct appeal (see People v. Washington, 39 A.D.3d 1228, 1230, 834 N.Y.S.2d 407 [4th Dept. 2007], lv denied 9 N.Y.3d 870, 840 N.Y.S.2d 899, 872 N.E.2d 1205 [2007] ; People v. Lawrence, 27 A.D.3d 1120, 1121, 812 N.Y.S.2d 205 [4th Dept. 2006], lv denied 6 N.Y.3d 850, 816 N.Y.S.2d 756, 849 N.E.2d 979 [2006] ). "Defendant's remaining complaints concerning defense counsel's representation are based on disagreements with trial tactics, and defendant has failed to establish the absence of any legitimate explanation for defense counsel's decisions" ( Lawrence, 27 A.D.3d at 1121, 812 N.Y.S.2d 205 ; see People v. Seaton, 147 A.D.3d 1531, 1532, 47 N.Y.S.3d 562 [4th Dept. 2017] ; see generally People v. Caban, 5 N.Y.3d 143, 154, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ).
In his pro se supplemental brief, defendant contends that he was denied his right of confrontation when the autopsy report was admitted in evidence and one medical examiner was permitted to testify regarding the findings made and documented by a second medical examiner who prepared the report. That contention is not preserved for our review (see People v. Chelley, 121 A.D.3d 1505, 1506, 993 N.Y.S.2d 597 [4th Dept. 2014], lv denied 24 N.Y.3d 1218, 4 N.Y.S.3d 606, 28 N.E.3d 42 [2015], reconsideration denied 25 N.Y.3d 1070, 12 N.Y.S.3d 622, 34 N.E.3d 373 [2015] ; People v. Bonner, 94 A.D.3d 1500, 1501–1502, 942 N.Y.S.2d 746 [4th Dept. 2012], lv denied 19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012], reconsideration denied 20 N.Y.3d 1059, 962 N.Y.S.2d 610, 985 N.E.2d 920 [2013] ). In any event, defendant's contention lacks merit (see People v. Freycinet, 11 N.Y.3d 38, 42, 862 N.Y.S.2d 450, 892 N.E.2d 843 [2008] ; see also People v. John, 27 N.Y.3d 294, 315, 33 N.Y.S.3d 88, 52 N.E.3d 1114 [2016] ; Chelley, 121 A.D.3d at 1506–1507, 993 N.Y.S.2d 597 ; People v. Acevedo, 112 A.D.3d 454, 455, 976 N.Y.S.2d 82 [1st Dept. 2013], lv denied 23 N.Y.3d 1017, 992 N.Y.S.2d 800, 16 N.E.3d 1280 [2014] ).
Although defendant further contends in his pro se supplemental brief that he was denied his right to be present at a material stage of the proceedings, we conclude that defendant "failed to meet his burden of coming forward with substantial evidence establishing his absence" from any material stage of the proceedings ( People v. Foster, 1 N.Y.3d 44, 48, 769 N.Y.S.2d 156, 801 N.E.2d 376 [2003] ; see People v. Rivera, 83 A.D.3d 1370, 1371, 919 N.Y.S.2d 691 [4th Dept. 2011], lv denied 17 N.Y.3d 904, 933 N.Y.S.2d 659, 957 N.E.2d 1163 [2011] ).
Finally, we reject defendant's contention in his main and pro se supplemental briefs that the sentence is unduly harsh and severe.