[970 N.Y.S.2d 717] Frankie & Gentile, P.C., Mineola (Joseph A. Gentile of counsel), for appellant.
Kathleen M. Rice, District Attorney, Mineola (Barbara Kornblau, Tammy J. Smiley and Judith R. Sternberg of counsel), for respondent.
[992 N.E.2d 1060] We hold that Judiciary Law § 21 does not bar a substitute judge from deciding a question of law presented in a motion argued orally before another judge so long as a transcript or recording of the prior argument is available for review, and " the substitute indicates on the record the requisite familiarity with the proceedings and no undue prejudice occurs to the defendant or the People" ( People v. Thompson, 90 N.Y.2d 615, 621, 665 N.Y.S.2d 21, 687 N.E.2d 1304  ). Put another way, section 21 does not mandate a mistrial or that the pending motion be reargued orally in front of the substitute judge.
On December 18, 2007, defendant Grady Hampton was at the house in Uniondale, New York where he lived with family members and his girlfriend of five years, Martinique (Nikki) G. After getting off from work at 4:00 P.M., Nikki returned to the house to get ready for her night school class at 5:45 P.M. She had intended to drive defendant's car, but the tank was low on gas, and defendant would not give Nikki money to fill it up. In front of defendant, in the bedroom they shared, Nikki telephoned Kareem S. (Kareem), a friend since childhood. Cell phone records show this call was made at 4:57 P.M.
Nikki asked Kareem if he would give her a lift to her class, which he agreed to do. About a year before, while Nikki was dating defendant, she had engaged in a short-lived affair with Kareem. Defendant, who had heard rumors of this sexual [992 N.E.2d 1061] [970 N.Y.S.2d 718] relationship, left the room before Nikki finished the phone call. There was no love lost between defendant and Kareem; Nikki acknowledged they exchanged " dirty looks" when they encountered one another.
Kareem arrived in short order to pick up Nikki. There were two passengers in his car— his then girlfriend, Sharnae M. (Sharnae), who sat in the front passenger seat and a friend, Joel D. (Joel), who sat in the backseat, directly behind Sharnae. Kareem parked across the street from defendant's house; either shortly before or just after arriving, he called Nikki on his cell phone to alert her he was there. Cell phone records show this call was placed at 5:03 P.M.
Nikki walked across the street to Kareem's car. Kareem removed his jacket and other items from the backseat to make room for Nikki and her belongings, which she placed there; he opened the trunk of the car. Meanwhile, Nikki walked back across the street to defendant's parked car to retrieve her pocketbook. As she put the key into the car lock, she heard three or four gunshots and ducked down.
When the shooting stopped, Nikki saw Kareem staggering with his hands up before falling to the ground Sharnae and Joel, who had remained inside Kareem's car, also heard the gunshots. Joel heard Kareem say, " yo, yo, chili, chill" as he stumbled backwards. Through the rear window (the trunk was still open, narrowing his field of view), Joel glimpsed a tall, thin figure, dressed all in black, including a black hoodie, running away from the car. Later that evening, Sharnae, while seated in
a police car, saw defendant walking down the street and into a house a few doors down from his own. He sported an Afro and was wearing a black hoodie.
Kareem was taken by ambulance to the hospital, where he was pronounced dead. He suffered gunshot wounds to the chest, back, and buttocks; the shots to his chest and back, both described as " lethal" by the medical examiner, perforated his heart and lungs. The chest wound was inflicted from a distance of an inch or less. Kareem was 19 years old.
Shamiquia N. (Shamiquia) saw defendant on the day of the shooting, both before and later, when he arrived at the house where she was living with her boyfriend and his family. This residence is located a few doors down from defendant's house. Defendant had changed his appearance from earlier in the day by taking his cornrow braids out and styling his hair in an Afro. Shamiquia overheard defendant say that he shot Kareem because Nikki " tested his manhood," and that he " put [the gun] in the woods."
In the summer of 2008, defendant was arrested and charged with intentional murder (Penal Law § 125.25 ) for the killing of Kareem, and second-degree weapon possession (Penal Law § 265.03[b];  ) (two counts) in connection with this crime. After his arrest, defendant was interrogated by a police detective. When confronted with cell site records contradicting his account of when he left his house before the shooting and where he went,  defendant changed his story. He also conceded that he knew that Kareem and Nikki " were having sex." Further, in response to the detective's comment that everyone makes mistakes, defendant replied that " sometimes people make big mistakes." According to the detective, defendant's eyes were watery and he put his head down in his hands. The detective took a [992 N.E.2d 1062] [970 N.Y.S.2d 719] break, during which defendant's attorney called and further questioning ceased.
Defendant's first trial resulted in a hung jury and mistrial; he was re-tried in September 2009 in a jury trial presided over by Supreme Court Justice Jerald S. Carter. After the close of the People's case, defense counsel moved to dismiss the charges, arguing that defendant's identity as the shooter had not been established. The People opposed ...