THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. AMIR BORDIES DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]) and four counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]) arising out of his participation in a drive-by shooting. We affirm.

Initially, we reject defendant's contention that County Court erred in declining to sever his trial from that of his codefendant, who unsuccessfully raised the same issue on his own appeal (see People v Everson, 44 NY3d 488, 492-493 [2025]).

Defendant contends that the People committed a Brady violation and a violation of CPL 245.20 (2) by failing to disclose the existence of a pole camera in the vicinity of a prosecution witness's residence and failing to preserve and disclose all of the video footage captured by that camera. We reject that contention. “To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material” (People v Fuentes, 12 NY3d 259, 263 [2009], rearg denied 13 NY3d 766 [2009]; see People v Garrett, 23 NY3d 878, 885 [2014], rearg denied 25 NY3d 1215 [2015]). We conclude that defendant failed to demonstrate that the undisclosed video footage constituted Brady material inasmuch as defendant's theory that the video may have provided impeachment material showing a prosecution witness engaging in gang activity is purely speculative (see People v Ruple, 239 AD3d 1040, 1044 [3d Dept 2025], lv denied 44 NY3d 1013 [2025]; People v Scott, 309 AD2d 573, 574 [1st Dept 2003], lv denied 2 NY3d 806 [2004]; see generally People v Smith, 306 AD2d 861, 862 [4th Dept 2003], lv denied 100 NY2d 599 [2003]). We further conclude that the People did not violate their disclosure obligations with respect to the video footage recorded by the pole camera. Rather, they met their obligation to provide “[a]ll tapes or other electronic recordings ․ made or received in connection with the alleged criminal incident” (CPL 245.20 [1] [g]) by providing defendant with video from the day before, the day of, and the day after the incident.

We reject defendant's contention that the court erred in admitting evidence of prior violence between feuding groups of individuals who reside in the vicinity of the park where the shooting occurred, as well as evidence that defendant and his codefendant were affiliated with one of those groups. “Evidence regarding gang activity can be admitted to provide necessary background, or when it is ‘inextricably interwoven’ with the charged crime[ ], or to explain the relationships of the individuals involved” (People v Kims, 24 NY3d 422, 438 [2014]; see People v Tatum, 204 AD3d 1400, 1402 [4th Dept 2022], lv denied 38 NY3d 1074 [2022]). Here, the testimony regarding defendant's affiliation with certain individuals provided necessary background information to explain his relationship to his codefendant and his motive for shooting from a moving car into a crowd of people in the park (see People v Savery, 209 AD3d 1268, 1269 [4th Dept 2022], lv denied 39 NY3d 1075 [2023]), and the prejudicial effect of that testimony did not outweigh its probative value (see People v Haygood, 201 AD3d 1363, 1364 [4th Dept 2022], lv denied 38 NY3d 951 [2022]).

Contrary to defendant's contention, the court did not err in instructing the jury on the doctrine of transferred intent. “The doctrine of ‘transferred intent’ serves to ensure that a person will be prosecuted for the crime he or she intended to commit even when, because of bad aim or some other ‘lucky mistake,’ the intended target was not the actual victim” (People v Fernandez, 88 NY2d 777, 781 [1996]; see People v Dubarry, 25 NY3d 161, 171 [2015]). Here, because defendant was charged with violating Penal Law § 125.25 (1), which “provides that a defendant is guilty of murder in the second degree when, with intent to cause the death of another person, he or she causes the death of such person or of a third person, an instruction on transferred intent was appropriate” (People v Jeffrey, 164 AD3d 604, 605 [2d Dept 2018], lv denied 32 NY3d 1065 [2018]; see People v Blackshell, 178 AD3d 1355, 1356 [4th Dept 2019], lv denied 35 NY3d 968 [2020]; see generally People v Jones, 41 AD3d 507, 508 [2d Dept 2007], lv denied 9 NY3d 877 [2007]). We further conclude that the transferred intent instruction did not impermissibly alter the theory of the prosecution (see People v Lee, 183 AD3d 1183, 1189-1190 [3d Dept 2020], lv denied 35 NY3d 1114 [2020]).

Defendant contends that the evidence is legally insufficient to support the conviction of murder in the second degree because the People failed to establish that he possessed the requisite mental state for the commission of that crime. Viewing the evidence in the light most favorable to the People (see People v Delamota, 18 NY3d 107, 113 [2011]; People v Contes, 60 NY2d 620, 621 [1983]), we conclude the evidence is legally sufficient with respect to the murder conviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). A person is guilty of murder in the second degree when, “[w]ith intent to cause the death of another person, he causes the death of such person or of a third person” (Penal Law § 125.25 [1]). A defendant's intent to kill may be inferred from their conduct as well as from the circumstances surrounding the crime (see People v Price, 35 AD3d 1230, 1231 [4th Dept 2006], lv denied 8 NY3d 926 [2007]), and “a jury is entitled to infer that a defendant intended the natural and probable consequences of [their] acts” (People v Noonan, 202 AD3d 1469, 1470 [4th Dept 2022], lv denied 38 NY3d 1009 [2022] [internal quotation marks omitted]; see People v Hough, 151 AD3d 1591, 1593 [4th Dept 2017], lv denied 30 NY3d 950 [2017]). Here, the People presented evidence establishing defendant's intent to kill, specifically witness testimony that defendant possessed a handgun and fired it multiple times at a group gathered at the park (see Everson, 44 NY3d at 493; Blackshell, 178 AD3d at 1356). Moreover, viewing the evidence in light of the elements of the crime of murder in the second degree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that, although a different result would not have been unreasonable, the verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).

We also reject defendant's contention that he was denied a fair trial by prosecutorial misconduct, including the prosecutor's references to the musical West Side Story in her opening statement and to the quality of the police investigation in her summation. The challenged comments were not “so egregious as to deprive defendant of a fair trial” (People v Everson, 229 AD3d 1349, 1351 [4th Dept 2024], affd 44 NY3d 488 [2025]; see People v Melendez, 11 AD3d 983, 984 [4th Dept 2004], lv denied 4 NY3d 888 [2005]; People v White, 291 AD2d 842, 843 [4th Dept 2002], lv denied 98 NY2d 656 [2002]), and the court “alleviated any prejudice arising from the prosecutor's comments and summation by instructing the jury that the comments and summations of the prosecutor and defense counsel do not constitute evidence” (People v Williams, 28 AD3d 1059, 1061 [4th Dept 2006], affd 8 NY3d 854 [2007]). Defendant's contention that he was deprived of a fair trial based on other comments the prosecutor made during summation is not preserved for our review inasmuch as he did not object to the comments that he now contends were improper (see CPL 470.05 [2]; People v Nesmith, 242 AD3d 1564, 1565 [4th Dept 2025], lv denied 44 NY3d 1067 [2026]; People v Dozier, 238 AD3d 1523, 1525 [4th Dept 2025], lv denied 44 NY3d 1027 [2025]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

Finally, we reject defendant's contention that the sentence is unduly harsh and severe.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court