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People v. Criss

Supreme Court of New York, Third Department

June 15, 2017

ISAIAH T. CRISS, Appellant.

          Calendar Date: May 2, 2017

          Michael P. Graven, Owego, for appellant, and appellant pro se.

          Stephen K. Cornwell Jr., District Attorney, Binghamton (Peter N. DeLucia of counsel), for respondent.

          Before: Peters, P.J., Garry, Lynch, Clark and Aarons, JJ.


          Lynch, J.

         Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered May 22, 2014, upon a verdict convicting defendant of the crimes of murder in the second degree and criminal possession of a weapon in the second degree.

         On September 8, 2012, Jeremiah Reynolds (hereinafter the victim) was shot in the abdomen at The Rock B Tavern, a bar in the City of Binghamton, Broome County. After he was shot, the victim ran from the bar, was found lying in a nearby yard and taken by ambulance to the hospital where he later died.

         The next day, Robert Camber Jr. was arrested for the victim's murder, but charges were later dropped when investigators learned that it was defendant who shot the victim. On January 25, 2013, defendant was charged by indictment with murder in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. Following a jury trial, defendant was convicted of the first two counts. County Court thereafter denied defendant's CPL 330.30 motion to set aside the verdict based on, among other things, juror misconduct and the court's determination to allow a witness to testify about threats made by defendant's mother. The court sentenced defendant to concurrent prison terms of 25 years to life for his conviction of murder in the second degree and 15 years, followed by five years of postrelease supervision, for his conviction of criminal possession of a weapon in the second degree. Defendant now appeals.

         Initially, we reject defendant's argument that County Court improperly denied his pretrial request for a Rodriguez/Wade hearing. The People did not provide notice that it intended to provide identification testimony (see CPL 710.30) and defendant requested a Wade hearing in his pretrial omnibus motion. The court allowed the People to present identification testimony, but cautioned that, if an identification procedure were used, then defendant could seek to preclude the testimony. In our view, the photographic identification procedures used here were not subject to the notice provisions of CPL 710.30 because defendant was known to the witnesses and photographs were confirmatory, that is, shown to the witnesses to put a name to the face (see People v Heyliger, 126 A.D.3d 1117, 1120 [2015], lv denied 25 N.Y.3d 1165');">25 N.Y.3d 1165 [2015]; People v Cobian, 185 A.D.2d 452, 453 [1992], lv denied 81 N.Y.2d 838');">81 N.Y.2d 838 [1993]; People v Cherny, 179 A.D.2d 938, 938-939 [1992], lv denied 79 N.Y.2d 998 [1992]). We find further that the court's pretrial Sandoval ruling was correct. Defendant sought to preclude the introduction of two prior convictions. The court ruled that if defendant chose to testify, then the People would only be permitted to question him about his 2011 conviction for criminal sale of a controlled substance in the third degree. We discern no abuse of discretion in the court's determination that this conviction was probative because it went "directly to the character trait of integrity" (see People v Watson, ___ A.D.3d ___, ___, 2017 NY Slip Op 03802, *2 [2017]; People v Reid, 97 A.D.3d 1037, 1037-1038 [2012], lv denied 19 N.Y.3d 1104');">19 N.Y.3d 1104 [2012]).

         Next, defendant contends that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence. Although defendant's general trial motion to dismiss was not specific enough to preserve his challenge to the legal sufficiency of the evidence (see People v Hawkins, 11 N.Y.3d 484, 492 [2008]), we necessarily consider the elements of the crimes charged when we weigh the evidence to determine whether each element was proven beyond a reasonable doubt (see People v Danielson, 9 N.Y.3d 342, 349 [2007]; People v Bullock, 145 A.D.3d 1104, 1105 [2016]). This review requires us first to decide whether, "based on all the credible evidence[, ] a different finding would not have been unreasonable, " and then, "like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" (People v Bleakley, 69 N.Y.2d 490, 495 [1987] [internal quotation marks and citation omitted]; see People v Murrell, 148 A.D.3d 1296, 1297 [2017]). When conducting a review of the weight of the evidence, we view the evidence in a neutral light and defer to the jury's credibility assessments (see People v Crooks, 129 A.D.3d 1207, 1208 [2015], affd 27 N.Y.3d 609 [2016]).

         A defendant is guilty of murder in the second degree if the proof established "'that [the] defendant caused the victim's death after having acted with the intent to do so'" (People v Morgan, 149 A.D.3d 1148, 1149-1150 [2017], quoting People v Wlasiuk, 136 A.D.3d 1101, 1102 [2016], lv denied 27 N.Y.3d 1009');">27 N.Y.3d 1009 [2016]; see Penal Law § 125.25 [1]). A defendant is guilty of criminal possession of a weapon in the second degree if he or she "possesses a loaded firearm" with the intent to use it unlawfully against another person (Penal Law § 265.03 [1] [b]; see People v Bost, 139 A.D.3d 1317, 1318 [2016]).

         Kristel Slater, the victim's girlfriend, testified that approximately one week before the shooting, she and the victim were walking home when they came upon a group fighting with a young man that she recognized. Slater testified that, when the victim's attempt to break up the altercation was unsuccessful, he became engaged in a fight with Rayshaun Cauthan and Mustapha Wesley. Slater's sister testified that she had observed defendant, Cauthan and Wesley together in the past, and Angela Proctor, a bartender at The Rock B, confirmed that Cauthan and defendant were friends. Against this historical backdrop, the People's theory was that defendant shot the victim to avenge Cauthan and Wesley's prior altercation with the victim.

         The trial testimony established that the morning that the victim was shot, defendant, Cauthan and Wesley were at The Rock B. Video footage obtained from a nearby "pole camera" also showed defendant entering, leaving and reentering the bar prior to the shooting. Camber, his cousin Frank Barnett Jr., Eladio Murphy and Curtis Johnson were also there celebrating Murphy's birthday. Hope Gaines Cole, who was also there, testified that she knew Camber, Barnett, Murphy and defendant, and that she recalled seeing all four at the bar. There was conflicting testimony with regard to whether these patrons were searched prior to entering and/or reentering the bar, and the bouncer testified that it was not likely that he searched everyone at the door.

         Cole testified that, from where she was sitting in The Rock B, she could see the entryway to the bar and the bouncer. She saw defendant leave the bar and return shortly thereafter and noticed that when he returned, he was not searched, and she could see a gun in his hand. Defendant walked by Cole and shot the victim, who was standing in the corner approximately eight feet away from where she was sitting. The victim ran from the bar and defendant chased after him. Barnett testified that he was also at The Rock B and saw defendant - who he had known for approximately six years - walk past him and approach the victim. The two began arguing and defendant shot the victim with what Barnett believed was ...

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