Opinion
2014-05-9
The PEOPLE of the State of New York, Respondent, v. Bryson DAVIS–JOHNSON, Defendant–Appellant.
Charles T. Noce, Conflict Defender, Rochester (Kimberly J. Czapranski of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Amanda L. Dreher of Counsel), for Respondent.
Charles T. Noce, Conflict Defender, Rochester (Kimberly J. Czapranski of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Amanda L. Dreher of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, and WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of manslaughter in the second degree (Penal Law § 125.15[1] ) after his first trial ended in a hung jury. Contrary to defendant's contention, the conviction is supported by legally sufficient evidence ( see generally People v. Delamota, 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383;People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1). Although defendant's further challenge to the legal sufficiency of the evidence at the first trial is properly before us because “[t]he Double Jeopardy Clause precludes a second trial if the evidence from the first trial is determined by the reviewing court to be legally insufficient” ( People v. Scerbo, 74 A.D.3d 1730, 1731, 903 N.Y.S.2d 621,lv. denied15 N.Y.3d 757, 906 N.Y.S.2d 830, 933 N.E.2d 229;see People v. Scott, 107 A.D.3d 1635, 1636–1637, 968 N.Y.S.2d 768,lv. denied21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151), we reject that challenge. The evidence at both trials, which included the testimony of four eyewitnesses,was substantially similar, and demonstrated that defendant was “aware of and consciously disregard[ed] a substantial and unjustifiable risk” of death when defendant and at least one other individual gained entry to a known drug house operated by the victim, and the victim was fatally shot through his apartment door when he returned (§ 15.05[3]; see§§ 20.00, 125.15[1]; see also People v. Flayhart, 72 N.Y.2d 737, 742, 536 N.Y.S.2d 727, 533 N.E.2d 657;People v. Davis, 278 A.D.2d 886, 886–887, 718 N.Y.S.2d 757,lv. denied96 N.Y.2d 757, 725 N.Y.S.2d 284, 748 N.E.2d 1080). Even if defendant's “assistance was not initially planned, the totality of the evidence permits only the conclusion that he knowingly participated and continued to participate even after his companion's intentions became clear” ( People v. Allah, 71 N.Y.2d 830, 832, 527 N.Y.S.2d 731, 522 N.E.2d 1029;see People v. Scott, 107 A.D.3d 1592, 1593, 966 N.Y.S.2d 728,lv. denied22 N.Y.3d 958, 977 N.Y.S.2d 189, 999 N.E.2d 554).
“Defendant was convicted ‘upon legally sufficient trial evidence,’ and thus his contention with respect to the competency of the evidence before the grand jury ‘is not reviewable upon an appeal from the ensuing judgment of conviction’ ” ( People v. Haberer, 24 A.D.3d 1283, 1284, 805 N.Y.S.2d 904,lv. denied7 N.Y.3d 756, 819 N.Y.S.2d 882, 853 N.E.2d 253,reconsideration denied7 N.Y.3d 848, 823 N.Y.S.2d 777, 857 N.E.2d 72, quoting CPL 210.30 [6] ). Defendant's sentence is not unduly harsh or severe, and his remaining contention does not require modification or reversal of the judgment.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.