Opinion
15575 Ind. No. 65/13 Case No. 2016–812
03-24-2022
The PEOPLE of the State of New York, Respondent, v. Jamel HUNTER, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Lorraine Maddalo of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Beth Kublin of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Lorraine Maddalo of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Beth Kublin of counsel), for respondent.
Gische, J.P., Mazzarelli, Friedman, Gonza´lez, Mendez, JJ.
Judgment, Supreme Court, Bronx County (Ralph Fabrizio, J.), rendered July 9, 2015, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. The eyewitness testimony of a bystander was extensively corroborated by other evidence including defendant's possession of a distinctive jacket matching the one worn by the gunman, surveillance videos recorded before and after the shooting, and ballistics evidence
Defendant did not preserve his challenges to testimony about the decedent's assault against defendant's sister several months before the homicide, and the prosecutor's summation argument that this incident motivated defendant to seek revenge, and we decline to review them in the interest of justice. As an alternative holding, we find that the jury could have drawn a reasonable inference that defendant knew of the incident involving his sister, and that "[s]uch evidence of the defendant's possible animosity towards the decedent was probative of a revenge-related motive" ( People v. Degree, 186 A.D.3d 501, 503–504, 128 N.Y.S.3d 631 [2d Dept. 2020], lv denied 36 N.Y.3d 971, 138 N.Y.S.3d 489, 162 N.E.3d 718 [2020] ). Moreover, rather than objecting, defense counsel made use of this testimony to impugn the victim's character. Defendant's ineffective assistance of counsel claim based on the failure to object to this testimony is unreviewable in the absence of a CPL 440.10 motion (see People v. Maffei, 35 N.Y.3d 264, 269–70, 127 N.Y.S.3d 403, 150 N.E.3d 1169 [2020] ). In the alternative, insofar as this claim is reviewable, it is unavailing because "counsel cannot be ineffective for failing to make a motion that has little or no chance of success" ( People v. Williams, 35 N.Y.3d 24, 46, 124 N.Y.S.3d 593, 147 N.E.3d 1131 [2020] ).
We perceive no basis for reducing the sentence.