Opinion
2012-03-6
The PEOPLE, etc., respondent, v. Bradford WASHINGTON, appellant.
Steven Banks, New York, N.Y. (Lorraine Maddalo of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Rebecca Height of counsel), for respondent.
Steven Banks, New York, N.Y. (Lorraine Maddalo of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Rebecca Height of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Buchter, J.), rendered January 31, 2008, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, reckless endangerment in the first degree, and endangering the welfare of a child, under Indictment No. 999/05, upon a jury verdict, and imposing sentence, and (2) a judgment of the same court rendered February 11, 2009, convicting him of murder in the second degree, under Indictment No. 1000/05, upon his plea of guilty, and imposing sentence.
ORDERED that the judgments are affirmed.
The defendant's contentions that the court improperly permitted a detective to testify about his attempts to find the defendant and that it improperly charged the jury on consciousness of guilt are unpreserved for appellate review ( see People v. Arriaga, 77 A.D.3d 846, 847, 909 N.Y.S.2d 379). In any event, those claims are without merit. First, the detective's testimony supported the People's argument that the defendant's attempt to evade the police demonstrated his consciousness of guilt ( id. at 847, 909 N.Y.S.2d 379; see People v. Solimini, 69 A.D.3d 657, 658, 892 N.Y.S.2d 480; People v. Scharpf, 60 A.D.3d 1101, 1103, 874 N.Y.S.2d 322; People v. Allen, 61 A.D.2d 619, 622, 403 N.Y.S.2d 522, affd. 48 N.Y.2d 760, 423 N.Y.S.2d 657, 399 N.E.2d 544; cf. People v. Stilwell, 244 N.Y. 196, 199, 155 N.E. 98). Second, a charge on consciousness of guilt was warranted by the evidence, and the court's charge here was correct ( see People v. Arriaga, 77 A.D.3d at 847, 909 N.Y.S.2d 379; People v. Robinson, 10 A.D.3d 696, 781 N.Y.S.2d 781; CJI2d[NY] Consciousness of Guilt).
The defendant's contention that the prosecutor changed the theory of the prosecution during his summation is without merit. A fair reading of the summation reveals that the prosecutor never wavered from the People's theory that the defendant had been the gunman. In any event, the defendant's status as a principal or accomplice has no bearing on the theory of liability ( see People v. Mateo, 2 N.Y.3d 383, 408–409, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; People v. Rivera, 84 N.Y.2d 766, 770–771, 622 N.Y.S.2d 671, 646 N.E.2d 1098).
Inasmuch as the defendant raises no independent claim regarding his conviction under Indictment No. 1000/05, that judgment must be affirmed in light of the affirmance of the judgment on Indictment No. 999/05 ( cf. People v. Fuggazzatto, 62 N.Y.2d 862, 863, 477 N.Y.S.2d 619, 466 N.E.2d 159).