Opinion
57 KA 17-01071
04-22-2022
The PEOPLE of the State of New York, Respondent, v. Davontae BROWN, Defendant-Appellant.
DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by directing that the sentence imposed on count three of the indictment shall run concurrently with the sentence imposed on count one of the indictment, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, of robbery in the first degree ( Penal Law § 160.15 [4] ), criminal possession of a weapon in the second degree (§ 265.03 [3]), assault in the first degree (§ 120.10 [4]), and assault in the second degree (§ 120.05 [6]), under a theory of accomplice liability (see § 20.00). The conviction arises from defendant's gunpoint robbery and shooting of two victims in their vehicle during an ostensible marihuana purchase arranged by his codefendant, who was convicted of the same charges (see People v. Davis , 177 A.D.3d 1323, 1323, 114 N.Y.S.3d 538 [4th Dept. 2019], lv denied 35 N.Y.3d 969, 125 N.Y.S.3d 33, 148 N.E.3d 497 [2020] ).
Defendant's contention that Supreme Court erred in admitting in evidence the recordings of two jail telephone calls is preserved for our review only with respect to the first recorded call (see CPL 470.05 [2] ; People v. Bennett , 94 A.D.3d 1570, 1570-1571, 943 N.Y.S.2d 371 [4th Dept. 2012], lv denied 19 N.Y.3d 994, 951 N.Y.S.2d 470, 975 N.E.2d 916 [2012], reconsideration denied 19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012] ). In any event, we conclude that defendant's contention is without merit in all respects. The recorded calls, which "tended to establish that defendant and the codefendant were acquaintances," were relevant inasmuch as "persons are more likely to commit crimes with acquaintances than strangers" ( Davis , 177 A.D.3d at 1324, 114 N.Y.S.3d 538 [internal quotation marks omitted]). Moreover, contrary to defendant's assertions, the recorded calls were not cumulative to other evidence (see People v. Everett , 183 A.D.3d 417, 419, 123 N.Y.S.3d 585 [1st Dept. 2020], lv denied 35 N.Y.3d 1065, 129 N.Y.S.3d 395, 152 N.E.3d 1197 [2020] ), and their probative value was not "substantially outweighed by the danger that [the evidence would] unfairly prejudice the other side or mislead the jury" ( People v. Scarola , 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728 [1988] ; see People v. Boyd , 159 A.D.3d 1358, 1362, 73 N.Y.S.3d 301 [4th Dept. 2018], lv denied 31 N.Y.3d 1145, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018] ; People v. McIntosh , 158 A.D.3d 1289, 1291, 71 N.Y.S.3d 778 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ). We note that the court's limiting instruction minimized any prejudice to defendant (see Boyd , 159 A.D.3d at 1362, 73 N.Y.S.3d 301 ).
We reject defendant's contention that he was denied effective assistance of counsel. Defendant failed to meet his burden of establishing " ‘the absence of strategic or other legitimate explanations’ for counsel's alleged shortcomings" ( People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ). Next, defendant contends that the evidence is legally insufficient to establish his identity as a perpetrator of the offenses on the grounds that the eyewitness identification testimony was flawed and the prosecution lacked DNA or other forensic evidence to corroborate the eyewitness testimony. That contention is preserved for our review inasmuch as defendant's motion for a trial order of dismissal at the close of the People's case was " ‘specifically directed’ at the alleged error" now advanced on appeal ( People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), and defendant renewed his motion at the close of all the proof (cf. People v. Hines , 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ). Nonetheless, defendant's contention lacks merit. "Legal sufficiency review requires that we view the evidence in the light most favorable to the prosecution, and, when deciding whether a jury could logically conclude that the prosecution sustained its burden of proof, [w]e must assume that the jury credited the People's witnesses and gave the prosecution's evidence the full weight it might reasonably be accorded" ( People v. Allen , 36 N.Y.3d 1033, 1034, 140 N.Y.S.3d 465, 164 N.E.3d 271 [2021] [internal quotation marks omitted]; see People v. Hampton , 21 N.Y.3d 277, 287-288, 970 N.Y.S.2d 716, 992 N.E.2d 1059 [2013] ; People v. Delamota , 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ). Viewed in that light, we conclude that the evidence—including the identification testimony of the two victims, who each had a close view of defendant during the incident, identified the perpetrator as defendant from review of his social media profile shortly after the incident, and provided an in-court identification of defendant at trial—is legally sufficient to establish defendant's identity as a perpetrator of the offenses (see People v. Spencer , 191 A.D.3d 1331, 1331-1332, 140 N.Y.S.3d 656 [4th Dept. 2021], lv denied 37 N.Y.3d 960, 147 N.Y.S.3d 544, 170 N.E.3d 418 [2021] ; People v. Perkins , 160 A.D.3d 1455, 1455, 76 N.Y.S.3d 700 [4th Dept. 2018], lv denied 31 N.Y.3d 1151, 83 N.Y.S.3d 433, 108 N.E.3d 507 [2018] ; People v. Kindred , 60 A.D.3d 1240, 1241, 876 N.Y.S.2d 177 [3d Dept. 2009], lv denied 12 N.Y.3d 926, 884 N.Y.S.2d 707, 912 N.E.2d 1088 [2009] ). Furthermore, given the direct and circumstantial evidence of defendant's identity, the lack of forensic evidence does not render the evidence legally insufficient (see generally People v. Randolph , 180 A.D.3d 716, 717, 118 N.Y.S.3d 733 [2d Dept. 2020], lv denied 35 N.Y.3d 1048, 127 N.Y.S.3d 831, 151 N.E.3d 512 [2020] ; People v. Wilson , 71 A.D.3d 1333, 1335, 897 N.Y.S.2d 746 [3d Dept. 2010] ; Kindred , 60 A.D.3d at 1241, 876 N.Y.S.2d 177 ).
Defendant failed to preserve for our review his further contention that the evidence is legally insufficient to support the conviction of assault in the first degree with respect to the serious physical injury element, inasmuch as he did not specifically raise that issue in his motion for a trial order of dismissal (see Gray , 86 N.Y.2d at 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ; People v. Moses , 197 A.D.3d 951, 953, 153 N.Y.S.3d 373 [4th Dept. 2021], lv denied 37 N.Y.3d 1097, 156 N.Y.S.3d 796, 178 N.E.3d 443 [2021], reconsideration denied 37 N.Y.3d 1163, 160 N.Y.S.3d 706, 181 N.E.3d 1134 [2022] ; People v. Wright , 41 A.D.3d 1221, 1222, 838 N.Y.S.2d 742 [4th Dept. 2007], lv denied 9 N.Y.3d 928, 844 N.Y.S.2d 182, 875 N.E.2d 901 [2007] ). In any event, that contention lacks merit. Here, the female victim testified that the shooting necessitated immediate and follow-up surgeries to repair her arm and hand with hardware and a tendon transfer, with additional surgery planned, and resulted in numbness and an inability to use her fingers for common tasks, as well as the need to wear a splint to keep her fingers straight and prevent her hand from clawing, all of which persisted at the time of trial over 11/2 years after the shooting. Despite the absence of medical proof, we conclude that the evidence is legally sufficient to establish that the female victim sustained serious physical injury in the form of protracted impairment of the function of a bodily organ (see Penal Law § 10.00 [10] ; People v. Joyce , 150 A.D.3d 1632, 1633, 54 N.Y.S.3d 472 [4th Dept. 2017], lv denied 31 N.Y.3d 1118, 81 N.Y.S.3d 378, 106 N.E.3d 761 [2018] ; see also People v. Baker , 156 A.D.3d 1485, 1485, 67 N.Y.S.3d 369 [4th Dept. 2017], lv denied 31 N.Y.3d 981, 77 N.Y.S.3d 659, 102 N.E.3d 436 [2018], reconsideration denied 31 N.Y.3d 1145, 83 N.Y.S.3d 426, 108 N.E.3d 500 [2018] ).
Contrary to defendant's further contention, 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 the verdict is not against the weight of the evidence with respect to defendant's identity as a perpetrator (see People v. Thomas , 176 A.D.3d 1639, 1640, 111 N.Y.S.3d 155 [4th Dept. 2019], lv denied 34 N.Y.3d 1082, 116 N.Y.S.3d 166, 139 N.E.3d 824 [2019] ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Even assuming, arguendo, that a different verdict would not have been unreasonable, we cannot conclude that the jury failed to give the evidence the weight it should be accorded (see Thomas , 176 A.D.3d at 1640, 111 N.Y.S.3d 155 ; see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Indeed, the "[i]ssues of identification and credibility, including the weight to be given to inconsistencies in testimony, were properly considered by the jury[,] and there is no basis for disturbing its determinations" ( Thomas , 176 A.D.3d at 1640, 111 N.Y.S.3d 155 [internal quotation marks omitted]). Additionally, given the relative strength of the victims’ identifications, and the corroborating circumstantial evidence that defendant and codefendant were acquaintances who acted in concert to set up and execute the robbery of the victims, we reject defendant's contention that the lack of forensic evidence renders the verdict against the weight of the evidence (see Kindred , 60 A.D.3d at 1241, 876 N.Y.S.2d 177 ; People v. Lunetta , 38 A.D.3d 1303, 1305, 832 N.Y.S.2d 358 [4th Dept. 2007], lv denied 8 N.Y.3d 987, 838 N.Y.S.2d 490, 869 N.E.2d 666 [2007] ). We also reject defendant's contention that the conviction of assault in the first degree is against the weight of the evidence with respect to the element of serious physical injury (see People v. Felong , 192 A.D.3d 1664, 1665-1666, 144 N.Y.S.3d 515 [4th Dept. 2021], lv denied 37 N.Y.3d 955, 147 N.Y.S.3d 538, 170 N.E.3d 412 [2021] ; see generally Joyce , 150 A.D.3d at 1633, 54 N.Y.S.3d 472 ). Defendant contends that the court erred in directing that the sentence on the count of assault in the first degree (assault of the female victim) run consecutively to the sentence imposed on the count of assault in the second degree (assault of the male victim). We reject that contention. Here, our review of the record—including the evidence that three or four shots were fired, each of which constituted a separate and distinct act (see People v. McKnight , 16 N.Y.3d 43, 49, 917 N.Y.S.2d 594, 942 N.E.2d 1019 [2010] ), as well as the circumstances surrounding the shooting such as the timing of the shots relative to the victims’ positions in the vehicle and the locations of their injuries—"establishes that there was a sufficient factual basis for the court to conclude that the victims were wounded by different bullets, thereby supporting the imposition of consecutive sentences in connection with the assault convictions" ( People v. Rivera , 262 A.D.2d 31, 31, 692 N.Y.S.2d 313 [1st Dept. 1999], lv denied 93 N.Y.2d 1025, 697 N.Y.S.2d 584, 719 N.E.2d 945 [1999] ; see People v. Munnerlyn , 193 A.D.3d 981, 983, 142 N.Y.S.3d 837 [2d Dept. 2021], lv denied 37 N.Y.3d 973, 150 N.Y.S.3d 706, 172 N.E.3d 818 [2021] ; People v. Holmes , 92 A.D.3d 957, 957, 938 N.Y.S.2d 902 [2d Dept. 2012], lv denied 19 N.Y.3d 961, 950 N.Y.S.2d 113, 973 N.E.2d 211 [2012] ; cf. People v. Banks , 181 A.D.3d 973, 977, 121 N.Y.S.3d 381 [3d Dept. 2020], lv denied 35 N.Y.3d 1025, 126 N.Y.S.3d 21, 149 N.E.3d 859 [2020] ; People v. Jones , 41 A.D.3d 507, 508-509, 838 N.Y.S.2d 126 [2d Dept. 2007], lv denied 9 N.Y.3d 877, 842 N.Y.S.2d 789, 874 N.E.2d 756 [2007] ).
We also reject defendant's contention that the court erred in directing that the sentence on the count of assault in the first degree run consecutively to the sentence imposed on the count of criminal possession of a weapon in the second degree. Here, we conclude that the record supports the inference that "there was a completed possession of the firearm for purposes of [Penal Law §] 265.03 (3) before defendant [entered the vehicle], and thus consecutive sentences were permissible" ( People v. Redmond , 182 A.D.3d 1020, 1023, 123 N.Y.S.3d 331 [4th Dept. 2020], lv denied 35 N.Y.3d 1048, 127 N.Y.S.3d 856, 151 N.E.3d 537 [2020] ; see People v. Brown , 21 N.Y.3d 739, 751, 977 N.Y.S.2d 723, 999 N.E.2d 1168 [2013] ; People v. Ellison , 151 A.D.3d 1905, 1906, 59 N.Y.S.3d 216 [4th Dept. 2017], lv denied 30 N.Y.3d 949, 67 N.Y.S.3d 132, 89 N.E.3d 522 [2017] ; People v. Evans , 132 A.D.3d 1398, 1398-1399, 17 N.Y.S.3d 576 [4th Dept. 2015], lv denied 26 N.Y.3d 1087, 23 N.Y.S.3d 644, 44 N.E.3d 942 [2015] ).
We agree with defendant, however, that the court erred in directing that the sentence on the count of assault in the first degree run consecutively to the sentence imposed on the count of robbery in the first degree because the robbery was the predicate felony for the felony assault (see Penal Law § 70.25 [2] ; People v. Miller , 148 A.D.3d 1689, 1690, 50 N.Y.S.3d 200 [4th Dept. 2017], lv denied 29 N.Y.3d 1083, 64 N.Y.S.3d 173, 86 N.E.3d 260 [2017] ). Inasmuch as "[t]he felony upon which felony assault is predicated is a material element of that crime," the sentence imposed on the count of assault in the first degree must run concurrently with the sentence imposed on the count of robbery in the first degree ( People v. Ahedo , 229 A.D.2d 588, 589, 646 N.Y.S.2d 520 [2d Dept. 1996], lv denied 88 N.Y.2d 964, 647 N.Y.S.2d 718, 670 N.E.2d 1350 [1996] ; see People v. Plume , 145 A.D.3d 1469, 1472, 46 N.Y.S.3d 304 [4th Dept. 2016] ; see generally People v. Parks , 95 N.Y.2d 811, 814-815, 712 N.Y.S.2d 429, 734 N.E.2d 741 [2000] ). We therefore modify the judgment accordingly.
Finally, the sentence as modified is not unduly harsh or severe.