Opinion
05-30-2024
The PEOPLE of the State of New York, Respondent, v. Kelvin BUSGITH, Defendant-Appellant.
David K. Bertan, New York, for appellant. Darcel D. Clark, District Attorney, Bronx (Maria I. Wager of counsel), for respondent.
David K. Bertan, New York, for appellant.
Darcel D. Clark, District Attorney, Bronx (Maria I. Wager of counsel), for respondent.
Manzanet-Daniels, J.P., Friedman, Kapnick, Gesmer, Rosado, JJ.
Judgment, Supreme Court, Bronx County (Ralph Fabrizio, J.), rendered March 3, 2017, as amended March 6, 2017 and March 8, 2017, convicting defendant, after a jury trial, of attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 20 years, unanimously modified, on the law, to the extent of amending the sentence and commitment sheet to reflect that defendant was convicted of assault in the first degree rather than assault in the second degree, and otherwise affirmed.
[1] The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]). The testimony of the two victims and the eyewitness, who were all familiar with defendant, along with the video evidence corroborating their accounts of the incident, supported the conclusion that defendant was the shooter. The victims and eyewitness identified defendant in court and, to the extent defendant’s appearance had changed, through his arrest photo. Further, ballistics evidence linked the recovered bullet and shell casings to a gun found in the courtyard of defendant’s family’s first-floor apartment.
[2] The court properly denied defendant’s motion to sever his trial from that of his codefendant. Defendant failed to identify an irreconcilable conflict between his and his codefendant’s defenses, let alone demonstrate a danger that such a conflict would lead the jury to infer defendant’s guilt (see People v. Mahboubian, 74 N.Y.2d 174, 184, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989]).
[3] Defendant did not preserve his challenge to the admission of the surveillance video taken from 1758 Eastburn Avenue, and we decline to review it in the interest of justice. As an alternative holding, we find that the trial court properly admitted the video, which was sufficiently authenticated by the testimony of the witnesses (see People v. Patterson, 93 N.Y.2d 80, 84, 688 N.Y.S.2d 101, 710 N.E.2d 665 [1999]; People v. Reed, 169 A.D.3d 573, 574, 95 N.Y.S.3d 81 [1st Dept. 2019], lv denied 33 N.Y.3d 1107, 106 N.Y.S.3d 688, 130 N.E.3d 1298 [2019]). As to the surveillance video from 1769 Eastburn Avenue, we have already determined on codefendant’s appeal that it was properly received (People v. Busgith, 189 A.D.3d 453, 454, 135 N.Y.S.3d 113 [1st Dept. 2020], lv denied 36 N.Y.3d 1095, 144 N.Y.S.3d 139, 167 N.E.3d 1274 [2021]). In any event, any error in admitting the videos was harmless, as the video from 1758 Eastburn Avenue did not depict defendant, and there was otherwise overwhelming evidence of defendant’s guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).
The sentence and commitment sheet should be amended to the extent indicated to correct a clerical error.