THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. TYWAYNE IVERY 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 two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]). Defendant's conviction stems from a shooting that occurred after defendant and three other men were approached by two men outside a store. After defendant fired a gun at one of the men who had approached, the two groups ran away from each other. Defendant turned back and fired another shot, which struck one of the men in defendant's group, killing him. In his trial testimony, defendant admitted to firing the gun once, but he presented a defense at trial that he acted in self-defense. We affirm.

Contrary to defendant's contention, Supreme Court properly denied defendant's challenges for cause to two prospective jurors. The statements made by each prospective juror did not indicate that they had “a state of mind that [was] likely to preclude [them] from rendering an impartial verdict based upon the evidence adduced at the trial” (CPL 270.20 [1] [b]; see People v Ozkaynak, 217 AD3d 1376, 1378 [4th Dept 2023], lv denied 40 NY3d 998 [2023]; People v Roseboro, 124 AD3d 1374, 1375 [4th Dept 2015], lv denied 27 NY3d 1005 [2016]; People v DeFreitas, 116 AD3d 1078, 1079-1081 [3d Dept 2014], lv denied 24 NY3d 960 [2014]; see generally People v Arnold, 96 NY2d 358, 363 [2001]).

Defendant failed to preserve for our review his contention that the court erred in granting the People's motion to consolidate for trial purposes the indictment before us on this appeal and a subsequent indictment charging him with one count of criminal possession of a weapon in the second degree for possessing a loaded firearm in a separate transaction (see People v Ridgeway, 59 AD3d 1111, 1112 [4th Dept 2009], lv denied 12 NY3d 820 [2009]). 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]).

We further conclude that defendant's challenge to the court's suppression ruling is academic because the statements that the court refused to suppress were not introduced at trial (see People v Cain, 227 AD3d 1519, 1520 [4th Dept 2024], lv denied 42 NY3d 926 [2024]; People v Crowley, 188 AD3d 1665, 1666-1667 [4th Dept 2020], lv denied 36 NY3d 1056 [2021]).

Defendant correctly concedes that he failed to preserve for our review his contention that the court erred in permitting the testimony of a police investigator identifying defendant in video surveillance footage and offering a narrative with an opinion of the events happening (see People v Alexander, 248 AD3d 1770, 1771-1772 [4th Dept 2026]; People v Sanders, 239 AD3d 1403, 1404 [4th Dept 2025]; see also People v Fulmer-Salvador, 193 AD3d 598, 599 [1st Dept 2021], lv denied 37 NY3d 965 [2021]). 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]).

Defendant further contends that the verdict is against the weight of the evidence with respect to his conviction of murder in the second degree inasmuch as the People did not disprove the defense of justification beyond a reasonable doubt. Specifically, defendant asserts that the People failed to disprove that he had reasonably believed that one of the men who approached his group, with whom he was disputing, was about to shoot him or others in his group. Viewing the evidence in light of the elements of the crime and the defense of justification as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict on the murder in the second degree count is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The jury could reasonably have found, based on the surveillance video and testimony, that the man with whom defendant was disputing was not using or attempting to use deadly physical force when defendant shot the victim (see People v St. John, 215 AD3d 1267, 1268 [4th Dept 2023], lv denied 40 NY3d 999 [2023]; see generally Penal Law § 35.15 [2] [a]). Moreover, the jury could reasonably have found, based on that same testimony and video, that defendant had the opportunity to retreat and failed to do so (see St. John, 215 AD3d at 1268; see generally § 35.15 [2] [a]).

The sentence is not unduly harsh or severe.

We have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment.

Entered: October 2, 2026

Ann Dillon Flynn

Clerk of the Court