Opinion
369 KA 19-00149
07-09-2021
The PEOPLE of the State of New York, Respondent, v. Jonathen MALONE, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. KULESUS OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. KULESUS OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon a nonjury verdict, of murder in the second degree ( Penal Law § 125.25 [1] ), defendant contends that the verdict is against the weight of the evidence with respect to his identity as the shooter. Even assuming, arguendo, that an acquittal would not have been unreasonable, we conclude that, viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), the verdict is not against the weight of the evidence as to identity (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). The testimony at trial established that defendant made admissions to his family members regarding the shooting. Additionally, although no one saw him shoot the victim, there is ample circumstantial evidence establishing defendant's identity as the shooter, including video footage of defendant shortly before the shooting, witness testimony regarding defendant's actions immediately before and after the shooting, and ballistics and DNA evidence.
Defendant failed to preserve for our review his contention that he was deprived of a fair trial because of certain allegedly improper testimony regarding prior bad acts, i.e., his father's testimony that defendant had asked him to hold onto defendant's rifle on several occasions prior to the date of the crime (see CPL 470.05 [2] ; People v. Finch , 180 A.D.3d 1362, 1363, 117 N.Y.S.3d 415 [4th Dept. 2020], lv denied 35 N.Y.3d 993, 125 N.Y.S.3d 627, 149 N.E.3d 388 [2020] ; People v. Woods , 72 A.D.3d 1563, 1564, 899 N.Y.S.2d 763 [4th Dept. 2010], lv denied 15 N.Y.3d 811, 908 N.Y.S.2d 171, 934 N.E.2d 905 [2010] ). In any event, as defendant correctly concedes, the prosecutor did not intentionally elicit that testimony and, thus, the testimony "[about] which defendant complains is not a ground for reversal" ( People v. Vasquez , 88 N.Y.2d 561, 578, 647 N.Y.S.2d 697, 670 N.E.2d 1328 [1996] ; see People v. Thigpen , 30 A.D.3d 1047, 1048, 816 N.Y.S.2d 262 [4th Dept. 2006], lv denied 7 N.Y.3d 818, 822 N.Y.S.2d 493, 855 N.E.2d 809 [2006] ; People v. Holton , 225 A.D.2d 1021, 1021, 640 N.Y.S.2d 708 [4th Dept. 1996], lv denied 88 N.Y.2d 986, 649 N.Y.S.2d 393, 672 N.E.2d 619 [1996] ).
To the extent that defendant contends that defense counsel was ineffective for failing to object to the allegedly improper testimony of defendant's father, we reject that contention. There was no allegation that the rifle in question was a "firearm" under Penal Law § 265.00 (3), and the possession of a rifle is not necessarily unlawful. Thus, the testimony of defendant's father did not constitute evidence of an uncharged crime or a prior bad act. In any event, we note that Supreme Court is presumed to have considered only competent evidence in reaching its verdict in this nonjury trial (see People v. Dyson , 169 A.D.3d 917, 918, 94 N.Y.S.3d 327 [2d Dept. 2019], lv denied 33 N.Y.3d 975, 101 N.Y.S.3d 269, 124 N.E.3d 758 [2019] ; see also People v. Wise , 46 A.D.3d 1397, 1399, 847 N.Y.S.2d 802 [4th Dept. 2007], lv denied 10 N.Y.3d 872, 860 N.Y.S.2d 499, 890 N.E.2d 262 [2008] ).
Finally, the sentence is not unduly harsh or severe.