Opinion
652 KA 21-00849
10-07-2022
The PEOPLE of the State of New York, Respondent, v. Zaccai SAVERY, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTIN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTIN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, WINSLOW, AND BANNISTER, 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 upon a jury verdict of, inter alia, murder in the second degree ( Penal Law § 125.25 [1] ) and two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]). Following a fatal shooting, Syracuse Police Department detectives interviewed defendant, and he indicated, among other things, that he and the decedent were members of a gang, had committed numerous robberies together, and had robbed a drug dealer from Yonkers on the day of the killing. Defendant told the detectives that the man from Yonkers must have shot the decedent after the robbery. On appeal, defendant contends that County Court erred in admitting in evidence the parts of that interview in which defendant made statements concerning his membership in a gang and his participation in prior robberies with the decedent. We reject defendant's contention.
It is well settled that "evidence of uncharged crimes is inadmissible where its only relevance is to show defendant's bad character or criminal propensity" ( People v. Agina , 18 N.Y.3d 600, 603, 942 N.Y.S.2d 411, 965 N.E.2d 913 [2012] ). Nevertheless, "[e]vidence of a defendant's prior bad acts may be admissible when it is relevant to a material issue in the case other than defendant's criminal propensity" ( People v. Dorm , 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 [2009] ). Thus, the Court of Appeals has unequivocally stated that evidence of a defendant's prior bad acts, including "[e]vidence regarding gang activity can be admitted to provide necessary background, or when it is inextricably interwoven with the charged crimes, or to explain the relationships of the individuals involved" ( People v. Kims , 24 N.Y.3d 422, 438, 999 N.Y.S.2d 337, 24 N.E.3d 573 [2014] [internal quotation marks omitted]; see People v. Bailey , 32 N.Y.3d 70, 83, 85 N.Y.S.3d 377, 110 N.E.3d 489 [2018] ).
Here, the court did not abuse its discretion in admitting the evidence concerning defendant's gang membership. We conclude that the evidence was inextricably interwoven with the narrative of events leading up to the shooting, and provided necessary background information to explain to the jury the relationship between defendant, the decedent, and the eyewitnesses to the crimes (see Bailey , 32 N.Y.3d at 83, 85 N.Y.S.3d 377, 110 N.E.3d 489 ; People v. Argueta , 194 A.D.3d 857, 858, 149 N.Y.S.3d 104 [2d Dept. 2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 680, 172 N.E.3d 792 [2021] ; People v. Jones , 179 A.D.3d 948, 950, 114 N.Y.S.3d 234 [2d Dept. 2020], lv denied 35 N.Y.3d 942, 124 N.Y.S.3d 301, 147 N.E.3d 571 [2020], reconsideration denied 35 N.Y.3d 1027, 126 N.Y.S.3d 40, 149 N.E.3d 878 [2020] ). In addition, we conclude that "the prejudicial effect of [the evidence] did not outweigh its probative value" ( Argueta , 194 A.D.3d at 858, 149 N.Y.S.3d 104 ; see generally People v. Alvino , 71 N.Y.2d 233, 241-242, 525 N.Y.S.2d 7, 519 N.E.2d 808 [1987] ). Moreover, the court alleviated any prejudice to defendant by providing an appropriate limiting instruction (see Bailey , 32 N.Y.3d at 83-84, 85 N.Y.S.3d 377, 110 N.E.3d 489 ; People v. Benjamin , 203 A.D.3d 617, 617, 162 N.Y.S.3d 726 [1st Dept. 2022], lv denied 38 N.Y.3d 1069, 171 N.Y.S.3d 444, 191 N.E.3d 396 [2022] ; People v. Haygood , 201 A.D.3d 1363, 1364, 158 N.Y.S.3d 709 [4th Dept. 2022], lv denied 38 N.Y.3d 951, 185 N.E.3d 995 [2022] ).
Similarly, the court did not abuse its discretion in admitting evidence that defendant and the decedent had committed robberies together. That evidence was admissible "to complete the narrative of the events charged in the indictment ... and [to] provide[ ] necessary background information" ( People v. Workman , 56 A.D.3d 1155, 1156, 868 N.Y.S.2d 430 [4th Dept. 2008], lv denied 12 N.Y.3d 789, 879 N.Y.S.2d 66, 906 N.E.2d 1100 [2009] [internal quotation marks omitted]; see People v. Bullard-Daniel , 203 A.D.3d 1630, 1632, 163 N.Y.S.3d 726 [4th Dept. 2022], lv denied 38 N.Y.3d 1069, 171 N.Y.S.3d 444, 191 N.E.3d 396 [2022] ; People v. Resto , 147 A.D.3d 1331, 1332-1333, 47 N.Y.S.3d 522 [4th Dept. 2017], lv denied 29 N.Y.3d 1000, 57 N.Y.S.3d 722, 80 N.E.3d 415 [2017], reconsideration denied 29 N.Y.3d 1094, 63 N.Y.S.3d 10, 85 N.E.3d 105 [2017] ).
Defendant also contends that the verdict is contrary to the weight of the evidence, based primarily upon his challenge to the credibility of the two eyewitnesses. " ‘Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence, we must give great deference to the jury, given its opportunity to view the witnesses and observe their demeanor’ " ( People v. Barnes , 158 A.D.3d 1072, 1073, 70 N.Y.S.3d 679 [4th Dept. 2018], lv denied 31 N.Y.3d 1011, 78 N.Y.S.3d 281, 102 N.E.3d 1062 [2018] ). Contrary to defendant's contention, the eyewitnesses’ testimony was not incredible as a matter of law (see People v. O'Neill , 169 A.D.3d 1515, 1515-1516, 93 N.Y.S.3d 501 [4th Dept. 2019] ; People v. Johnson , 153 A.D.3d 1606, 1607, 62 N.Y.S.3d 658 [4th Dept. 2017], lv denied 30 N.Y.3d 1020, 70 N.Y.S.3d 452, 93 N.E.3d 1216 [2017] ). Although there were some inconsistencies in that testimony, it was not "manifestly untrue, physically impossible, contrary to experience, or self-contradictory" ( People v. Caballero , 199 A.D.3d 1468, 1471, 158 N.Y.S.3d 495 [4th Dept. 2021], lv denied 38 N.Y.3d 926, 164 N.Y.S.3d 16, 184 N.E.3d 837 [2022], reconsideration denied 38 N.Y.3d 949, 165 N.Y.S.3d 460, 185 N.E.3d 981 [2022] [internal quotation marks omitted]). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that, although a different verdict would not have been unreasonable, the jury did not fail to give the evidence the weight it should be accorded (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Finally, the sentence is not unduly harsh or severe.