THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. SHALLAH SHERMAN DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Monroe County, for resentencing in accordance with the following memorandum: Defendant appeals from a judgment convicting him, following a bench trial, of two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]; [3]), arising from an incident in which a police officer responding to a separate report of gunfire in the area observed defendant discharge multiple shots from a handgun during a large outdoor celebratory gathering.

Defendant contends that the evidence is legally insufficient to establish that he possessed the handgun because the eyewitness testimony was flawed and the prosecution lacked DNA or other forensic evidence to corroborate the eyewitness testimony. Defendant failed to preserve that contention for our review inasmuch as he made only a general motion for a trial order of dismissal (see People v Finger, 95 NY2d 894, 895 [2000]; People v Gray, 86 NY2d 10, 19 [1995]). In any event, defendant's contention lacks merit. “Legal sufficiency review requires that we view the evidence in the light most favorable to the prosecution, and, when deciding whether a [factfinder] could logically conclude that the prosecution sustained its burden of proof, [w]e must assume that the [factfinder] credited the People's witnesses and gave the prosecution's evidence the full weight it might reasonably be accorded” (People v Allen, 36 NY3d 1033, 1034 [2021] [internal quotation marks omitted]; see People v Hampton, 21 NY3d 277, 287-288 [2013]; People v Delamota, 18 NY3d 107, 113 [2011]). Viewed in that light, we conclude that the evidence—including the eyewitness testimony and body-worn camera footage of the officer who observed defendant discharge multiple shots from a handgun under well-lit conditions from a relatively close distance and then heard the sound of a metallic object hitting another object when defendant briefly ran behind a vehicle before reemerging without the handgun, which was shortly thereafter recovered from the area where it was discarded—is legally sufficient to establish that defendant possessed the handgun (see People v Taylor, 148 AD3d 1607, 1607-1608 [4th Dept 2017]; People v Reed, 45 AD3d 1333, 1333-1334 [4th Dept 2007], lv denied 10 NY3d 84 [2008]). Moreover, given the direct and circumstantial evidence of defendant's identity and his possession of the handgun, the lack of forensic evidence does not render the evidence legally insufficient (see People v Brown, 204 AD3d 1390, 1392 [4th Dept 2022], lv denied 39 NY3d 985 [2022]).

We reject defendant's further contention that the verdict is against the weight of the evidence. Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that, even if a different verdict would not have been unreasonable, it cannot be said that Supreme Court failed to give the evidence the weight it should be accorded (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). “In a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference” (People v Van Akin, 197 AD2d 845, 845 [4th Dept 1993]; see People v Lane, 7 NY3d 888, 890 [2006]), and we see no basis to reject the court's credibility and weight determinations here (see People v Spencer, 191 AD3d 1331, 1332 [4th Dept 2021], lv denied 37 NY3d 960 [2021]). Additionally, given the relative strength of the officer's eyewitness testimony, and the corroborating circumstantial evidence that defendant possessed the handgun, we reject defendant's assertion that the lack of forensic evidence renders the verdict against the weight of the evidence (see Brown, 204 AD3d at 1393; People v Kindred, 60 AD3d 1240, 1241 [3d Dept 2009], lv denied 12 NY3d 926 [2009]; People v Lunetta, 38 AD3d 1303, 1305 [4th Dept 2007], lv denied 8 NY3d 987 [2007]).

We also reject defendant's contention that the court erred in denying his request for a circumstantial evidence charge. A circumstantial evidence instruction need not be given “where there is both direct and circumstantial evidence of the defendant's guilt” (People v Hardy, 26 NY3d 245, 249 [2015]), and it is well established that “ ‘[d]irect evidence ․ include[s] ․ eyewitness testimony attesting to a defendant's participation in the crime’ ” (People v Dean, 198 AD3d 1306, 1307 [4th Dept 2021], lv denied 38 NY3d 926 [2022]; see People v McCullough, 249 AD3d 1502, 1506 [4th Dept 2026]). Here, the officer's eyewitness testimony at trial attesting to defendant's discharge of multiple shots from the handgun constituted direct evidence of guilt, and it follows that defendant was not entitled to a circumstantial evidence instruction (see Dean, 198 AD3d at 1307-1308). Contrary to defendant's assertions, the purported unpersuasiveness of the officer's trial testimony could not “change the character of th[at] evidence from direct to circumstantial,” and such testimony would remain direct evidence even if it did not singlehandedly prove each and every element of the crimes charged (Hardy, 26 NY3d at 251; see Dean, 198 AD3d at 1308).

Defendant next contends that he was denied effective assistance of counsel because defense counsel failed to adequately request an adverse inference charge based on missing surveillance video from the scene of the incident. We reject that contention. Inasmuch as the record establishes that defense counsel requested during the pre-charge conference, albeit in generic terms, that the court impose an appropriate sanction for the failure of the police to retain the surveillance video and to prevent its deletion, and the court appeared to suggest in response that it would consider in rendering its verdict the fact that the surveillance video was not retained, we conclude that defendant has “failed ‘to demonstrate the absence of strategic or other legitimate explanations for counsel's’ alleged ineffectiveness in failing to make particular arguments or take particular actions such as requesting an adverse inference charge [with more specificity]” (People v Flagg, 167 AD3d 165, 170 [4th Dept 2018], quoting People v Rivera, 71 NY2d 705, 709 [1988]).

Defendant further contends that defense counsel was ineffective in failing to request a jury instruction on the cross-racial effect in witness identification because defendant and the officer who identified defendant as the person he observed possessing and firing the handgun are of different races. Even assuming, arguendo, that the circumstances of this case establish that defendant would have been entitled to a cross-racial identification instruction if defense counsel had requested it (see People v Boone, 30 NY3d 521, 535-536 [2017]), we conclude on this record that defense counsel's “single error in failing to request such a charge [did] not constitute ineffective representation as it was not so serious as to compromise defendant's right to a fair trial” (People v Robbs, 233 AD3d 1456, 1458 [4th Dept 2024], lv denied 43 NY3d 1058 [2025] [internal quotation marks omitted]).

We nonetheless agree with defendant that he was not lawfully sentenced as a persistent felony offender. Although the People filed a persistent felony offender statement pursuant to CPL 400.20 and the court pronounced at sentencing that it was adjudicating defendant a “persistent felony offender” under that statute, the record indicates that the court may have intended to sentence defendant as a persistent violent felony offender inasmuch as the court characterized the imposed indeterminate sentence of 16 years to life imprisonment as both mandatory and the minimum, which is consistent with the law for sentencing a persistent violent felony offender (see Penal Law § 70.08; CPL 400.16) rather than a persistent felony offender (see Penal Law § 70.10; CPL 400.20). Indeed, based on the information available to the court and to the People, both of defendant's prior convictions appear to be predicate violent felony convictions (see Penal Law § 70.04 [1] [b]; CPL 400.16 [1]; see also CPL 400.15 [2]; 400.16 [2]; People v Kaval, 39 NY3d 1081, 1083 [2022]). “[T]he statutory sentencing procedures, which [the Court of Appeals] ha[s] described as ‘mandatory [in] nature’ ” (Kaval, 39 NY3d at 1083, quoting People v Scarbrough, 66 NY2d 673, 674 [1985], revg on dissenting mem of Boomer, J., 105 AD2d 1107, 1107-1109 [4th Dept 1984]), “must be followed in any case where[, as here,] it appears that a defendant who stands convicted of a violent felony offense as defined in [Penal Law § 70.02 (1)] has previously been subjected to two or more predicate violent felony convictions as defined in [Penal Law § 70.04 (1) (b)], and may be a persistent violent felony offender as defined in [Penal Law § 70.08]” (CPL 400.16 [1]). Inasmuch as the apparently applicable “procedures and requirements ․ were not followed in this case ․ and it is unclear whether ․ defendant was a persistent felony offender or a persistent violent felony offender” (People v Smith, 177 AD2d 671, 672 [2d Dept 1991], lv denied 79 NY2d 1054 [1992], reconsideration denied 81 NY2d 1020 [1993]), we modify the judgment by vacating the sentence and we remit the matter to Supreme Court for resentencing in accordance with the law. In light of our determination, defendant's remaining contentions are academic.

Entered: October 9, 2026

Ann Dillon Flynn

Clerk of the Court