The opinion of the court was delivered by: Kaye, Chief Judge
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
The issue common to these otherwise unrelated criminal appeals is the preservation for this Court's review of defendants' challenge to the legal sufficiency of the evidence.
On November 27, 2002, at approximately 2:00 p.m., Thomas Gallina called 911 and reported that someone with a hammer was breaking into his home. The operator heard Gallina yell for the intruder to leave and to let go, and then could hear only Gallina's moaning. When the police arrived shortly thereafter, they found Gallina, alone, on the kitchen floor in a pool of blood with several gruesome head injuries that later resulted in his death.
The police saw tire tracks on the driveway and footprints near various entrances to Gallina's house, which they later learned were defendant's. Meanwhile, from a doorway in the house a police investigator collected blood evidence on a swab, "G," placed it in a box marked "G," and set it on top of a filing cabinet in the study; police later learned it was defendant's blood. When the police left the house, the only people remaining there were family members, who cleaned the broken glass, boarded up a broken window and locked the doors. None of them approached the filing cabinet where the swab was located.
Hours later, the police realized they were missing swab "G" and returned to the house, but it was locked. After obtaining a key from Gallina's sister and entering the house, an investigator found box "G" behind the filing cabinet, between the cabinet and the wall, took it back with him to the police station and sealed the evidence. At trial, the investigator testified that the box he retrieved had not been opened because, had it been, the box would have been creased or "dog-eared." The swab was inside the box and appeared unchanged.
A grand jury indicted defendant for depraved indifference murder, felony murder and burglary in the second degree. At the close of trial, defendant moved for an order of dismissal as follows:
"I respectfully submit that the People have failed to prove a prima facie case of Depraved Indifference Murder. Not only have they failed to prove a prima facie case that my client Bryan Hawkins was the perpetrator of the homicide... but they failed to prove that Mr. Hawkins acted with Depraved Indifference Murder in that matter.
After the trial court denied the motion, the jury convicted defendant of all three charged counts. The Appellate Division affirmed, 3-2, concluding that defendant's legal sufficiency claim was unpreserved and that the People had proved a chain of custody for the blood evidence. One of the dissenting Justices granted leave to appeal, and we affirm.
At 5:00 p.m. on April 13, 2005, Detectives Molina and Lansing, Sergeant Goggin, Undercover Officer 7567 and several other officers conducted a buy-and-bust operation in Manhattan. While driving around in an unmarked car, Molina and the undercover officer saw Adam Sanchez sell marihuana to an unidentified buyer on the sidewalk near where they were parked.
After the buyer walked away, the undercover exited the car. Sanchez called out "Weed." The undercover approached Sanchez asking "What do you have? Dimes?" Sanchez confirmed that he had "dimes," and the undercover requested two bags. Sanchez gave the undercover two bags of marihuana in exchange for $20 pre-recorded buy money. When the undercover asked whether Sanchez was also selling cocaine, he said, "[G]ive me a few minutes." Sanchez then approached defendant and Freddy Perez, who were standing a few feet away, near a bodega. The undercover pretended to converse with Molina, who observed Sanchez, Perez and defendant talking to one another; Perez walked west, while Sanchez and defendant stayed near the bodega.
During the brief time Perez was out of sight, Molina testified that defendant looked "westbound... eastbound... north and south." Perez then returned to the corner, where defendant stood, and placed a small object in the coin slot of a public telephone. Perez spoke to defendant and gestured to Sanchez. Sanchez then removed the object from the coin slot as defendant watched, "looking north and southbound." Sanchez gave Perez money, walked up to the undercover and handed her a clear bag containing cocaine, and the undercover gave Sanchez $30 in pre-recorded buy money. During the cocaine transaction, defendant and Perez waited at the corner for a short time, then the two entered a double-parked van and drove away. Police pulled the ...