PEOPLE v. ELLIS (2026)

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered May 24, 2023, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree (two counts), and sentencing him to concurrent terms of 17 years to life on the murder count and 10 years on each weapon possession count, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348–349 [2007];  see also People v Baque, 43 NY3d 26 [2024] ).  There is no basis for disturbing the jury's determination that defendant was the shooter, where an unbroken chain of video surveillance captured defendant's actions, beginning when defendant left his apartment shortly before the murder.  Although some of the footage was of poor quality, defendant's facial features were visible on the footage from higher quality cameras, and he could be identified based on his gait, his navy blue hooded sweatsuit with white insignias on the left breast and left pant leg, and a white headphone wire draped across his chest.  Since the videos overlapped, the jurors were able to watch defendant's movements and ascertain that the videos followed the movements of the same person.  The jury could also compare the person in the videos to defendant's arrest photos and to defendant himself in the courtroom.  Thus, the video footage provided ample evidence that defendant and the shooter were the same person.  Further, the video evidence was corroborated by cell phone records and cell site data.

The court correctly determined that a police officer was sufficiently familiar with defendant such that his identification of defendant was confirmatory (see People v Rodriguez, 79 NY2d 445, 451–453 [1992] ).  The officer testified that in 2018 and 2019, as the neighborhood coordinating officer for the housing project where defendant lived, his job was to “get to know all the community members” and “remember them,” that he regularly encountered defendant entering or exiting the building or on the basketball courts, and that he had spoken to defendant over 20 times in interactions that typically lasted minutes or seconds.  The officer had also identified defendant as the suspect in another case after viewing a surveillance video.  Given his familiarity with defendant, the officer's identification of defendant was not subject to suggestiveness (see People v Ugwu, 202 AD3d 416, 416 [1st Dept 2022], lv denied 38 NY3d 954 [2022] ).

The court providently exercised its discretion in dismissing a juror who suffered an asthma attack in the courthouse restroom, called her grandson to take her to the hospital, and told a court clerk that she would not be returning.  After a reasonably thorough inquiry, the court had sufficient information upon which to determine that the absence of the juror would delay the trial by far more that the statutory two-hour period (see CPL 270.35[2][a];  People v Jeanty, 94 NY2d 507, 515–517 [2000];  People v Bailey, 194 AD3d 496, 497 [1st Dept 2021], lv denied 37 NY3d 1095 [2021] ).

Defendant's ineffective assistance of counsel claims are beyond our review on direct appeal, as they involve matters not reflected in or fully explained by the record, and therefore should have been raised in a CPL 440.10 motion (see People v Henderson, 28 NY3d 63, 66 [2016];  People v Rivera, 71 NY2d 705, 709 [1988] ).  To the extent we can evaluate defendant's claims on the existing record, we find that defendant received effective assistance of counsel under the state and federal standards (see People v Benevento, 91 NY2d 708, 713–714 [1998];  Strickland v Washington, 466 US 668 [1984] ).

The court properly admitted a PowerPoint presentation authenticated by the witness who identified each piece of evidence he used to create each individual slide (see People v Anderson, 29 NY3d 69, 72–73 [2017], cert denied 583 US 977 [2017] ).  The witness did not improperly bolster the People's case, where he made clear that he had not conducted any investigation on his own but was showing evidence already admitted at trial.  While the PowerPoint used a consistent color to show defendant's tracked path and cell site locations, “additions made by the technician, such as inserting words, circles and arrows” into other compilation evidence, such as videos, are “properly admitted” (People v Stewart, 241 AD3d 1179, 1181 [1st Dept 2025], lv denied 45 NY3d 939 [2026];  see People v Cabrera, 137 AD3d 707, 707 [1st Dept 2016], lv denied 27 NY3d 1129 [2016] ).

The court properly denied defendant's request for a circumstantial evidence charge.  Where there is both direct and circumstantial evidence of the defendant's guilt, such a charge need not be given (see People v Hardy, 26 NY3d 245, 249 [2015] ).  Here, the surveillance videos constituted direct evidence of defendant's identity as the shooter.

We perceive no basis for reducing the sentence.