Opinion
550 KA 17-00934
08-22-2019
The PEOPLE of the State of New York, Respondent, v. Sandro TIRADO, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of attempted murder in the second degree ( Penal Law §§ 110.00, 125.25[1] ), criminal use of a firearm in the first degree (§ 265.09[1][b] ), assault in the first degree (§ 120.10[1] ), criminal possession of a weapon in the second degree (§ 265.03[3] ), and criminal possession of a controlled substance in the seventh degree (§ 220.03). Defendant contends that County Court erred in admitting in evidence a hearsay statement that a four-year-old child made to a police detective, in which the child stated that defendant shot the child's mother. That contention is not properly before us. Although the court initially overruled defendant's objection and concluded that the statement was admissible under the excited utterance exception to the hearsay rule, the court later reconsidered that ruling and instructed the jury that they could not consider the statement for the truth of the matter asserted. The court further instructed the jury that they could consider that statement only to explain why the detective began questioning another witness about defendant and how that phase of the investigation began. Because the court reconsidered its ruling, defendant's contentions concerning the original ruling are moot (see generally People v. Albanese, 38 A.D.3d 1015, 1018, n., 831 N.Y.S.2d 280 [3d Dept. 2007], lv denied 8 N.Y.3d 981, 838 N.Y.S.2d 484, 869 N.E.2d 660 [2007] ; People v. Villeneuve, 232 A.D.2d 892, 893, 649 N.Y.S.2d 80 [3d Dept. 1996] ). In any event, even assuming, arguendo, that the court erred in admitting the statement in evidence under the excited utterance exception to the hearsay rule, we conclude that such error is harmless (see People v. Hernandez, 28 N.Y.3d 1056, 1058, 65 N.E.3d 1272 [2016] ; People v. Spencer, 96 A.D.3d 1552, 1553, 946 N.Y.S.2d 753 [4th Dept. 2012], lv denied 19 N.Y.3d 1029, 953 N.Y.S.2d 562, 978 N.E.2d 114 [2012], reconsideration denied 20 N.Y.3d 989, 958 N.Y.S.2d 704, 982 N.E.2d 624 [2012] ). Defendant failed to preserve for our review his contention that he was denied his right of confrontation concerning the child's statement (see People v. Liner, 9 N.Y.3d 856, 856–857, 840 N.Y.S.2d 755, 872 N.E.2d 868 [2007], rearg. denied 9 N.Y.3d 941, 844 N.Y.S.2d 782, 876 N.E.2d 510 [2007] ; People v. Spirles, 136 A.D.3d 1315, 1316, 25 N.Y.S.3d 462 [4th Dept. 2016], lv denied 27 N.Y.3d 1007, 38 N.Y.S.3d 116, 59 N.E.3d 1228 [2016], cert denied ––– US ––––, 137 S. Ct. 298, 196 L.Ed.2d 220 [2016] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Defendant failed to preserve his contention that the indictment is multiplicitous (see People v. Fulton, 133 A.D.3d 1194, 1194–1195, 19 N.Y.S.3d 152 [4th Dept. 2015], lv. denied 26 N.Y.3d 1109, 26 N.Y.S.3d 767, 47 N.E.3d 97 [2016], reconsideration denied 27 N.Y.3d 997, 38 N.Y.S.3d 107, 59 N.E.3d 1219 [2016] ; People v. Quinn, 103 A.D.3d 1258, 1258, 962 N.Y.S.2d 527 [4th Dept. 2013], lv denied 21 N.Y.3d 946, 968 N.Y.S.2d 8, 990 N.E.2d 142 [2013] ). In any event, we conclude that the " ‘indictment is not multiplicitous [inasmuch as] each count requires proof of an additional fact that the other does not’ " ( People v. Jefferson, 125 A.D.3d 1463, 1464, 3 N.Y.S.3d 547 [4th Dept. 2015], lv denied 25 N.Y.3d 990, 10 N.Y.S.3d 533, 32 N.E.3d 970 [2015] ).
Defendant further contends that he may have been convicted by a non-unanimous jury because the trial evidence could have allowed a conviction on either the attempted murder or the assault counts based on the evidence that he shot the victim in the arm and that he shot her in the face. That is actually a claim of non-facial duplicity (see People v. Allen, 24 N.Y.3d 441, 448–449, 999 N.Y.S.2d 350, 24 N.E.3d 586 [2014] ), which requires preservation (see id. at 449–450, 999 N.Y.S.2d 350, 24 N.E.3d 586 ; People v. Zeman, 156 A.D.3d 1460, 1461, 65 N.Y.S.3d 827 [4th Dept. 2017], lv denied 31 N.Y.3d 988, 77 N.Y.S.3d 666, 102 N.E.3d 443 [2018] ; People v. Garner, 145 A.D.3d 1573, 1574, 43 N.Y.S.3d 838 [4th Dept. 2016], lv denied 29 N.Y.3d 1031, 62 N.Y.S.3d 300, 84 N.E.3d 972 [2017] ), and defendant failed to preserve that contention. In any event, that contention lacks merit. It is well settled that "the jury need not necessarily concur in a single view of the transaction, in order to reach a verdict ... ‘[I]f the conclusion may be justified upon [more than one] interpretation[ ] of the evidence, the verdict cannot be impeached by showing that a part of the jury proceeded upon one interpretation and part upon the other’ " ( People v. Mateo, 2 N.Y.3d 383, 408 n. 13, 779 N.Y.S.2d 399, 811 N.E.2d 1053 [2004], cert denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828 [2004] ; see People v. Thomas, 114 A.D.3d 1138, 1139, 979 N.Y.S.2d 729 [4th Dept. 2014], lv denied 24 N.Y.3d 965, 996 N.Y.S.2d 224, 20 N.E.3d 1004 [2014], cert denied ––– US ––––, 135 S. Ct. 1502, 191 L.Ed.2d 439 [2015] ).
Defendant further contends that the evidence is not legally sufficient to support the conviction, and that the verdict is against the weight of the evidence. Viewing the evidence in the light most favorable to the People (see People v. Gordon, 23 N.Y.3d 643, 649, 992 N.Y.S.2d 700, 16 N.E.3d 1178 [2014] ), we conclude that the evidence is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we also reject defendant's contention that the verdict is 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 ).
Finally, the sentence is not unduly harsh or severe.