Opinion
2012-11-16
The PEOPLE of the State of New York, Respondent, v. Luis A. VELAZQUEZ, Jr., Defendant–Appellant.
Easton Thompson Kasperek Shiffrin LLP, Rochester (Donald M. Thompson of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.
Easton Thompson Kasperek Shiffrin LLP, Rochester (Donald M. Thompson of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury trial of murder in the second degree (Penal Law § 125.25[1] ), criminal possession of a weapon in the second degree (§ 265.03[3] ), and two counts of criminal possession of a weapon in the third degree (§ 265.02[1], [former (4) ] ). Defendant failed to preserve for our review his contention that County Court erred in submitting to the deliberating jury, upon its request, a written portion of the court's final instructions ( seeCPL 470.05[2]; People v. Williams, 8 A.D.3d 963, 964, 778 N.Y.S.2d 244,lv. denied3 N.Y.3d 683, 784 N.Y.S.2d 21, 817 N.E.2d 839,cert. denied543 U.S. 1070, 125 S.Ct. 911, 160 L.Ed.2d 805), and we reject defendant's contention that the court thereby committed a “mode of proceedings error” such that preservation is not required ( see generally People v. Becoats, 17 N.Y.3d 643, 650–651, 934 N.Y.S.2d 737, 958 N.E.2d 865,cert. denied––– U.S. ––––, 132 S.Ct. 1970, 182 L.Ed.2d 822;People v. Mehmedi, 69 N.Y.2d 759, 760, 513 N.Y.S.2d 100, 505 N.E.2d 610,rearg. denied69 N.Y.2d 985, 516 N.Y.S.2d 1028, 509 N.E.2d 363).
In any event, we conclude that defendant's contention lacks merit. The jury sent a note to the court requesting “the description of each count and the law that applies to the count.” The court discussed the note with counsel outside the presence of the jury, and both defense counsel and the prosecutor consented to the submission, in writing, of the court's “charges on the five indicted counts” should the jury make such a request. After the court clarified the jury's request through the foreperson, the court provided the written portion of the charge to the jury, with defendant's consent. That was a proper response to the jury's request ( see People v. Owens, 69 N.Y.2d 585, 590–591, 516 N.Y.S.2d 619, 509 N.E.2d 314;see also People v. Martell, 91 N.Y.2d 782, 785–786, 676 N.Y.S.2d 115, 698 N.E.2d 944;People v. Johnson, 81 N.Y.2d 980, 981–982, 599 N.Y.S.2d 525, 615 N.E.2d 1009).
Defendant further contends that the court erred in failing to poll the jury on the issue whether they wanted the charges orally re-read or submitted to them in writing, rather than relying on the foreperson's statement that the jury preferred to have the charges in writing. Because defendant did not object to the court's reliance on the foreperson's statement or request that the jury be polled, his contention is not preserved for our review ( seeCPL 470.05[2] ). Even if defendant objected, however, we perceive no abuse of discretion by the court in relyingupon the foreperson's statement ( see People v. Jones, 52 A.D.3d 1252, 1252, 859 N.Y.S.2d 544,lv. denied11 N.Y.3d 738, 864 N.Y.S.2d 396, 894 N.E.2d 660), inasmuch as the foreperson acts as the “jury's spokesperson” ( People v. Burgess, 280 A.D.2d 264, 265, 719 N.Y.S.2d 649,lv. denied96 N.Y.2d 798, 726 N.Y.S.2d 375, 750 N.E.2d 77). We note that the foreperson's statement that the jury wished to receive the court's charge in writing was made in open court, in the presence of the entire jury, and the record does not reflect that any of the jurors expressed disagreement with the foreperson's statement.
We also reject defendant's contention that the conviction of intentional murder and criminal possession of a weapon in the second degree is not supported by legally sufficient evidence. A conviction is supported by legally sufficient evidence when, viewing the facts in the light most favorable to the People, “ ‘there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt’ ” ( 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). A witness who knew defendant testified that she saw him standing over the bleeding victim, gun in hand, almost immediately after the shots were fired. When that witness told defendant that she was going to call the police, defendant pointed the gun at her before he fled. Defendant's subsequent flight to Massachusetts is evidence of consciousness of guilt and further supports the jury's finding of guilt ( see generally People v. Yazum, 13 N.Y.2d 302, 304–305, 246 N.Y.S.2d 626, 196 N.E.2d 263,rearg. denied15 N.Y.2d 679, 255 N.Y.S.2d 1027, 204 N.E.2d 217). Finally, the fact that the victim was shot in the head, neck and chest, and that several shots were fired from close range, established the intent to kill element of murder in the second degree. We further conclude that, viewing the evidence in light of the elements of the crimes of intentional murder and criminal possession of a weapon in the second degree as charged to the jury ( see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), the verdict is not against the weight of the evidence with respect to those crimes ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
We have reviewed defendant's remaining contentions and conclude that they lack merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.