Opinion
2014-06-13
The PEOPLE of the State of New York, Respondent, v. Kevin J. DAVIS, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Kevin J. Davis, Defendant–Appellant Pro Se.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Kevin J. Davis, Defendant–Appellant Pro Se.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25[2] [depraved indifference murder] ) for firing 19 shots from an AK–47 assault rifle at a house in Buffalo. One of the bullets entered the living room and struck the victim, a 15–year–old girl who was sitting at the computer doing her homework. We reject defendant's contentions that the evidence is legally insufficient to establish that he was the shooter, and that the verdict is against the weight of the evidence in that regard. Defendant was identified as the shooter by a fellow gang member who drove him to the scene of the crime, and the police found the assault rifle used in the shooting in the attic of an apartment defendant shared with his girlfriend. Moreover, shortly after the shooting, defendant told another gang member that “it went down” and that he “shot the house up.” A week and a half later, defendant told another gang member that he had done “something stupid” and that he felt bad about what happened to that “innocent little girl.” Finally, when questioned by investigators while in police custody, defendant initially stated that he had nothing to do with the shooting. After he gave that statement, however, defendant told the investigator, “If I can talk to my father, I'll tell you the truth and give you another statement.” Although defendant did not in fact give another statement to the police after speaking to his father, the latter statement indicates that defendant was not being truthful when he initially denied involvement in the shooting.
Viewing the evidence in the light most favorable to the People, as we must ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that “ ‘there is a valid line of reasoning and permissible inferences from which a rational jury could have found’ ” that defendant was the person who fired the assault weapon at the victim's residence ( People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1;see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Viewing the evidence in light of the elements of the crime as charged to the jury ( see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), and giving appropriate deference to the jury's credibility determinations ( see People v. Hill, 74 A.D.3d 1782, 1782–1783, 902 N.Y.S.2d 755,lv. denied15 N.Y.3d 805, 908 N.Y.S.2d 165, 934 N.E.2d 899), we further conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Although defendant asserts that his fellow gang members framed him and testified falsely at trial, we accord great deference to the jury's resolution of credibility issues ( see People v. Mosley, 59 A.D.3d 961, 962, 872 N.Y.S.2d 825,lv. denied12 N.Y.3d 918, 884 N.Y.S.2d 699, 912 N.E.2d 1080,reconsideration denied13 N.Y.3d 861, 891 N.Y.S.2d 695, 920 N.E.2d 100), and nothing in the record suggests that the prosecution witnesses in question were “so unworthy of belief as to be incredible as a matter of law” ( People v. Miller, 115 A.D.3d 1302, 1305, 982 N.Y.S.2d 656 [internal quotation marks omitted] ). Indeed, we note that none of those witnesses received anything in return for such testimony.
We reject defendant's further contention that the evidence is legally insufficient to establish that he acted with the mental state of depraved indifference. The firing of numerous bullets “into a house in which [defendant] had reason to believe people would be present” is a quintessential example of depraved indifference ( People v. Shackelford, 100 A.D.3d 1527, 1528, 954 N.Y.S.2d 336,lv. denied21 N.Y.3d 1009, 971 N.Y.S.2d 261, 993 N.E.2d 1284;see People v. McGee, 87 A.D.3d 1400, 1401, 930 N.Y.S.2d 117,affd.20 N.Y.3d 513, 964 N.Y.S.2d 73, 986 N.E.2d 907;People v. Payne, 3 N.Y.3d 266, 271, 786 N.Y.S.2d 116, 819 N.E.2d 634,rearg. denied3 N.Y.3d 767, 788 N.Y.S.2d 670, 821 N.E.2d 975, citing People v. Jernatowski, 238 N.Y. 188, 144 N.E. 497;People v. Heesh, 94 A.D.3d 1159, 1160–1162, 941 N.Y.S.2d 767,lv. denied19 N.Y.3d 961, 950 N.Y.S.2d 113, 973 N.E.2d 211;People v. Callender, 304 A.D.2d 426, 427, 760 N.Y.S.2d 408,lv. denied100 N.Y.2d 641, 769 N.Y.S.2d 207, 801 N.E.2d 428). We note that defendant opened fire on the house at approximately 8:45 on a weeknight, multiple lights were on inside, and there was a vehicle parked in the driveway. There were five people inside, including four children. The police counted 14 bullet holes in the house and collected 19 spent AK–47 cartridges outside.
Defendant next contends that he was denied due process of law by the admission of evidence that he made the aforementioned statement to the police about giving another statement and telling the truth if he were allowed to speak to his father. According to defendant, County Court should have precluded that statement because it was not included in the People's CPL 710.30 notice. Because defendant did not object to the admission of the statement on that ground, he failed to preserve his contention for our review ( see People v. Finley, 42 A.D.3d 917, 918, 839 N.Y.S.2d 393,mod. on other grounds10 N.Y.3d 647, 862 N.Y.S.2d 1, 891 N.E.2d 1165). In any event, defendant moved for and was granted a Huntley hearing on the noticed statements, and during the hearing the investigator testified about the unnoticed statement at issue on appeal. Defendant therefore “waived preclusion on the ground of lack of notice because [he] was given a full opportunity to be heard on the voluntariness of that statement at the suppression hearing” ( People v. Dean, 299 A.D.2d 892, 893, 750 N.Y.S.2d 207,lv. denied99 N.Y.2d 613, 757 N.Y.S.2d 824, 787 N.E.2d 1170;see People v. Garcia, 290 A.D.2d 299, 300, 735 N.Y.S.2d 545,lv. denied98 N.Y.2d 730, 749 N.Y.S.2d 480, 779 N.E.2d 191;see generally People v. Rodriguez, 21 A.D.3d 1400, 1401, 804 N.Y.S.2d 160;People v. Griffin, 12 A.D.3d 458, 459, 783 N.Y.S.2d 847,lv. denied4 N.Y.3d 886, 798 N.Y.S.2d 732, 831 N.E.2d 977).
We have reviewed defendant's remaining contentions in his main and pro se supplemental briefs and conclude that they lack merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.