Counsel in a criminal trial is responsible for bringing error to the court's attention at a time when it could have been obviated.
[976 N.Y.S.2d 433] Lynn W.L. Fahey, Appellate Advocates, New York City (Melissa S. Horlick of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn (Leonard Job-love and Keith Dolan of counsel), for respondent.
[998 N.E.2d 1057] Defendant James Alcide was indicted for second-degree murder (Penal Law § 125.25 ) and second- and third-degree weapon possession (Penal Law §§ 265.03; 265.02 ) in connection with a shooting on February 20, 2005. The victim, recently released from prison, had driven a female friend on an errand to pick up clothes at a Brooklyn laundromat late in the afternoon of that day, expecting to meet up with his girlfriend there; she had begun a relationship with defendant while the victim was incarcerated. After the victim spoke briefly with his girlfriend, he turned away and walked into a nearby small grocery store.
A bystander sitting in a car parked on the same side of the street as the grocery store was startled by a shot. When he looked in the direction of the sound, the bystander saw a man firing a gun into the store; he identified defendant as the shooter in a lineup and, later, in court. The victim's friend, who was standing next to the victim's car about 40 feet away from the
store, waiting for him to return, also heard gun shots and saw defendant, whom she knew, sprinting out of the store with a gun in hand. The friend ran into the store where the victim was lying on the floor, grievously wounded. He spoke defendant's name to her before losing consciousness. At that point, as a crowd was forming outside and the police were arriving, the friend saw the victim's girlfriend and screamed " All this is your fault, you know. This is your fault."
In summation, defense counsel principally attacked the reliability of the testimony [998 N.E.2d 1058] [976 N.Y.S.2d 434] of the bystander and the victim's friend, the prosecution's two key witnesses. He claimed that the bystander was farther away from the grocery store than he estimated and had an obstructed view of the shooter in crepuscular light, making his eyewitness identification of defendant suspect; and that the friend, who had been convicted of various fraud-related offenses, gave testimony that was incredible (e.g., the victim's dying declaration), or, with respect to numerous factual matters (e.g., the time of the shooting, the color of the gun, the victim's height), inconsistent with other trial evidence. He also contended that the crime scene outside the store, where the police recovered a shell casing and a live cartridge, had been compromised by the crowd of onlookers.
During deliberations, the jury sent notes to the judge to request readbacks of the testimony of both the bystander and the first police officer to arrive at the crime scene. At trial, this officer testified that on February 20, 2005, she and her partner were working patrol when they were notified via radio that a male had been assaulted; they drove the five or six blocks to the location of the reported assault, which was the grocery store; she observed a crowd outside the store and a shell casing on the sidewalk once the crowd of 20 or 30 onlookers was pushed back; she found the victim lying on the floor inside the store; he was " mumbling, but unconscious" and unable to answer when asked if he had been shot; and the ambulance arrived about two or three minutes later and took the victim to the hospital.
The police officer also described how the crime scene outside the store was cleared of onlookers and secured, and testified that when she arrived, she saw a woman (the victim's girlfriend, as it turned out) " arguing with another individual" in front of the store. At the direction of her supervisor, the officer placed this woman, who denied having seen anything and " didn't really want to talk," in a ...