Opinion
839 KA 16-01484
12-20-2019
The PEOPLE of the State of New York, Respondent, v. Johnny BLACKSHELL, Defendant-Appellant. (Appeal No. 1.)
WILLIAM G. PIXLEY, PITTSFORD, FOR DEFENDANT–APPELLANT. JOHNNY BLACKSHELL, DEFENDANT–APPELLANT PRO SE. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS, Albany, OF COUNSEL), FOR RESPONDENT.
WILLIAM G. PIXLEY, PITTSFORD, FOR DEFENDANT–APPELLANT.
JOHNNY BLACKSHELL, DEFENDANT–APPELLANT PRO SE.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS, Albany, OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals, in appeal No. 1, from a judgment convicting him upon a jury verdict of, inter alia, three counts of murder in the first degree ( Penal Law § 125.27[1][a] [viii] ; [b] ). That judgment arises from an incident in which several people fired weapons from a moving vehicle into a crowd of people who were leaving a basketball game at the Boys and Girls Club in the City of Rochester, causing the death of three people. In appeal No. 2, defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (§ 265.03[3] ), arising from a separate incident in which he possessed a loaded .25 caliber handgun in a vehicle. In appeal No. 3, defendant appeals from a judgment convicting him upon his plea of guilty of, among other charges, attempted murder in the second degree (§§ 110.00, 125.25[1] ) and assault in the first degree (§ 120.10[1] ), arising from a series of incidents in which he and others stole weapons from a house, robbed one person at gunpoint, and shot another person who was standing on a street corner. We affirm in all three appeals.
Addressing first appeal No. 1, we conclude that defendant's contention in his main brief that County Court "committed reversible error by instructing the jury on the doctrine of transferred intent ... [is] unpreserved for appellate review" inasmuch as he did not object to that instruction either during the charge conference or when the court gave the instructions to the jury ( People v. Jeffrey, 164 A.D.3d 604, 605, 82 N.Y.S.3d 88 [2d Dept. 2018], lv denied 32 N.Y.3d 1065, 89 N.Y.S.3d 120, 113 N.E.3d 954 [2018] ; see People v. Williams, 163 A.D.3d 1422, 1422, 80 N.Y.S.3d 610 [4th Dept. 2018] ; People v. Carey, 159 A.D.3d 1529, 1530, 73 N.Y.S.3d 709 [4th Dept. 2018], lv denied 31 N.Y.3d 1079, 79 N.Y.S.3d 101, 103 N.E.3d 1248 [2018] ). Contrary to defendant's further contention in his main brief, his motion for a trial order of dismissal with respect to all of the charges that were based on transferred intent did not constitute a timely objection to the court's jury instruction regarding that doctrine (see People v. Rudney, 83 A.D.2d 746, 746, 443 N.Y.S.2d 502 [4th Dept. 1981] ; see also People v. Wolf, 98 N.Y.2d 105, 117 n 2, 745 N.Y.S.2d 766, 772 N.E.2d 1124 [2002] ).
In any event, the court's instruction was proper. Upon our review of the record, we conclude that "[t]he evidence ... supports an inference that, rather than acting recklessly, defendant fired shots with the intent to kill one or more of his enemies, whom he mistakenly believed to be present, and instead killed [several] bystander[s]" ( People v. Cruz, 154 A.D.3d 429, 429, 62 N.Y.S.3d 100 [1st Dept. 2017], lv denied 30 N.Y.3d 1059, 71 N.Y.S.3d 9, 94 N.E.3d 491 [2017], lv denied 33 N.Y.3d 1030, 102 N.Y.S.3d 515, 126 N.E.3d 165 [2019] ; see also People v. Lopez, 155 A.D.3d 892, 893, 63 N.Y.S.3d 677 [2d Dept. 2017], lv denied 30 N.Y.3d 1116, 77 N.Y.S.3d 341, 101 N.E.3d 982 [2018] ). Consequently, we conclude that the jury was properly instructed on intentional murder under a theory of transferred intent (see CPL 300.10[2] ; see generally People v. Dubarry, 25 N.Y.3d 161, 171–172, 8 N.Y.S.3d 624, 31 N.E.3d 86 [2015] ; People v. Wells, 7 N.Y.3d 51, 56–57, 817 N.Y.S.2d 590, 850 N.E.2d 637 [2006] ).
Defendant also failed to preserve for our review his contention in his main brief that one of the prosecutor's comments on summation was not supported by the evidence and that defendant was therefore deprived of a fair trial by that comment (see People v. Young, 100 A.D.3d 1427, 1428, 953 N.Y.S.2d 790 [4th Dept. 2012], lv denied 20 N.Y.3d 1105, 965 N.Y.S.2d 802, 988 N.E.2d 540 [2013] ; see also CPL 470.05[2] ). In any event, we conclude that the comment "did not exceed the broad bounds of rhetorical comment permissible in closing argument" ( People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 [1981] ). Even assuming, arguendo, that the prosecutor's comment went beyond those bounds, we further conclude that it was "not so egregious as to deprive defendant of a fair trial" ( People v. McEathron, 86 A.D.3d 915, 916, 926 N.Y.S.2d 249 [4th Dept. 2011], lv denied 19 N.Y.3d 975, 950 N.Y.S.2d 358, 973 N.E.2d 768 [2012] ). Defendant further contends in his main brief that the People failed to provide him with copies of the affidavits that accompanied the applications for the eavesdropping warrants within 15 days after arraignment, and therefore the court in appeal No. 1 erred in refusing to preclude evidence obtained based on communications that law enforcement agents intercepted pursuant to those warrants (see CPL 700.70 ). Inasmuch as defendant failed to seek preclusion of the evidence on those grounds, his contention is not preserved for our review (see CPL 470.05[2] ; see also People v. Romero, 120 A.D.3d 947, 949, 991 N.Y.S.2d 212 [4th Dept. 2014], lv denied 24 N.Y.3d 1004, 997 N.Y.S.2d 123, 21 N.E.3d 575 [2014] ; People v. Deponceau, 96 A.D.3d 1345, 1346, 946 N.Y.S.2d 331 [4th Dept. 2012], lv denied 19 N.Y.3d 1025, 953 N.Y.S.2d 558, 978 N.E.2d 110 [2012] ; People v. Espiritusanto, 4 A.D.3d 826, 826, 771 N.Y.S.2d 776 [4th Dept. 2004], lv denied 2 N.Y.3d 799, 781 N.Y.S.2d 298, 814 N.E.2d 470 [2004] ). In any event, that contention lacks merit. The record reflects that the People served copies of the eavesdropping warrants on defendant within 15 days of arraignment on the original indictment and again within 15 days of arraignment on the superseding indictment. Although the People did not serve the supporting affidavits until a later date, the record establishes that the court properly granted the People several extensions of time to serve the affidavits, after the People demonstrated good cause and the absence of prejudice to defendant (see CPL 700.70 ). We thus conclude that "the purpose of the 15–day statutory service requirement ... to facilitate the service and filing of all pretrial motions within 45 days after arraignment or within 45 days after service of the papers pursuant to CPL 700.70, was accomplished" ( People v. Liberatore, 79 N.Y.2d 208, 214, 581 N.Y.S.2d 634, 590 N.E.2d 219 [1992] ). We have considered defendant's further contentions regarding the eavesdropping warrants, and we conclude that they lack merit.
Defendant contends in his pro se supplemental brief that the court in appeal No. 1 erred in permitting the People to present certain Molineux evidence (see generally People v. Molineux, 168 N.Y. 264, 293, 61 N.E. 286 [1901] ). We reject that contention. Where, as here, " ‘identity is in issue and has not been conclusively established, evidence relevant to identification is admissible notwithstanding its incidental proof of guilt of a crime other than those charged’ " ( People v. Igbinosun, 24 A.D.3d 1250, 1251, 806 N.Y.S.2d 824 [4th Dept. 2005] ; see People v. Goodrell, 130 A.D.3d 1502, 1503, 12 N.Y.S.3d 482 [4th Dept. 2015] ; People v. Harvey, 105 A.D.3d 1429, 1430, 963 N.Y.S.2d 900 [4th Dept. 2013], lv denied 22 N.Y.3d 996, 981 N.Y.S.2d 2, 3 N.E.3d 1170 [2013] ). The evidence at issue concerned a prior burglary, in the course of which defendant stole a weapon used in the charged crimes, and ballistic and other evidence connecting defendant to that weapon before and after the commission of the charged crimes. We conclude here that "ballistic evidence tended to suggest that [one of the] weapons used in the shooting matched the ... weapon[ ] stolen in the aforementioned burglary and, therefore, the burglary evidence tended to establish defendant's identity as a person involved in the shooting" at issue ( People v. Harwood, 139 A.D.3d 1186, 1188, 31 N.Y.S.3d 310 [3d Dept. 2016], lv denied 28 N.Y.3d 1028, 45 N.Y.S.3d 380, 68 N.E.3d 109 [2016] ; see People v. Leach, 90 A.D.3d 1073, 1074, 935 N.Y.S.2d 631 [2d Dept. 2011], affd 21 N.Y.3d 969, 971 N.Y.S.2d 234, 993 N.E.2d 1255 [2013] ; People v. Nunes, 168 A.D.3d 1187, 1192, 90 N.Y.S.3d 694 [3d Dept. 2019], lv denied 33 N.Y.3d 979, 101 N.Y.S.3d 234, 124 N.E.3d 723 [2019] ). We have considered defendant's further contentions in his pro se supplemental brief concerning the court's Molineux ruling, and we conclude that they lack merit.
Contrary to defendant's further contention in his pro se supplemental brief, he was not denied effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Finally, defendant contends in his main brief that the judgments in appeal Nos. 2 and 3 must be reversed on the ground that he pleaded guilty based on the promise that the sentences in those appeals would run concurrently with the sentence in appeal No. 1. In view of our determination affirming the judgment in appeal No. 1, that contention lacks merit (see People v. Roig, 117 A.D.3d 1462, 1463, 984 N.Y.S.2d 519 [4th Dept. 2014], lv denied 23 N.Y.3d 1042, 993 N.Y.S.2d 255, 17 N.E.3d 510 [2014] ; People v. Khammonivang, 68 A.D.3d 1727, 1727–1728, 891 N.Y.S.2d 837 [4th Dept. 2009], lv denied 14 N.Y.3d 889, 903 N.Y.S.2d 777, 929 N.E.2d 1012 [2010] ; cf. People v. Fuggazzatto, 62 N.Y.2d 862, 863, 477 N.Y.S.2d 619, 466 N.E.2d 159 [1984] ).