Opinion
2019–08312 Ind. No. 8887/17
10-11-2023
The PEOPLE, etc., respondent, v. Nazir SAUNDERS, appellant.
Patricia Pazner, New York, NY (Sean H. Murray of counsel), for appellant, and appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Diane R. Eisner, and Daniel Berman of counsel), for respondent.
Patricia Pazner, New York, NY (Sean H. Murray of counsel), for appellant, and appellant
pro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Diane R. Eisner, and Daniel Berman of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, DEBORAH A. DOWLING, CARL J. LANDICINO, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Evelyn LaPorte, J.), rendered June 10, 2019, convicting him of murder in the second degree (two counts) and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
On July 12, 2017, two shooters fired guns into a crowd in the courtyard of the Stuyvesant Gardens Houses in Brooklyn, resulting in the death of two individuals. After a jury trial at which the People presented, inter alia, eyewitness testimony identifying the defendant as one of the two shooters, video surveillance evidence placing the defendant at the scene of the shooting, and ballistics evidence recovered from the scene, the jury convicted the defendant of two counts of murder in the second degree and two counts of criminal possession of a weapon in the second degree.
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. The evidence established a prima facie case as to the defendant's identity as the perpetrator of the crimes charged (see People v. Alman, 181 A.D.3d 694, 117 N.Y.S.3d 603 ; People v. Drummond, 143 A.D.3d 836, 39 N.Y.S.3d 208 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
Defense counsel's strategic determination not to object to the prosecution's use of prior inconsistent statements to impeach its own witness served to waive any objection thereto (see People v. Young, 134 A.D.2d 639, 521 N.Y.S.2d 534 ). In any event, the defendant's contention that the Supreme Court erred in permitting the prosecution to impeach its own witness is without merit because the testimony that the prosecution sought to impeach "affirmatively damage[d]" the prosecution's case ( People v. Ramos, 211 A.D.3d 1040, 1042, 180 N.Y.S.3d 609 ; see CPL 60.35[1], [2] ). The defendant failed to preserve for appellate review his contention that the court erred in permitting the prosecution to present evidence that a witness previously identified the defendant in a photo array (see CPL 470.05[2] ). In any event, this contention is without merit because this testimony was admitted for the purpose of impeachment and not as part of the prosecution's direct evidence (cf. id. § 60.25). Moreover, the court clearly and properly instructed the jury that these prior statements were to be considered for impeachment purposes only and not as direct proof of any facts (see id. § 60.35[2] ; People v. Magee, 128 A.D.2d 811, 513 N.Y.S.2d 514 ).
Although defense counsel's tactic of refraining from objecting to the prosecution's impeachment of its witness was not successful, it cannot be said that defense counsel's performance at trial was not effective (see People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 ; People v. Settles, 192 A.D.3d 1510, 1511, 143 N.Y.S.3d 479 ). The defendant also failed to show that defense counsel's failure to object to evidence that a witness identified the defendant in a photo array lacked a legitimate strategic purpose (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Williams, 136 A.D.3d 686, 686–687, 23 N.Y.S.3d 911 ). "That the strategy ultimately failed does not make counsel's representation ineffective" ( People v. Wragg, 26 N.Y.3d 403, 410, 23 N.Y.S.3d 600, 44 N.E.3d 898 ). Viewing the record as a whole, we find that the defendant was afforded meaningful representation (see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions, including those raised in his pro se supplemental brief, are without merit.
CONNOLLY, J.P., MALTESE, DOWLING and LANDICINO, JJ., concur.