PEOPLE v. MURPHY (2026)

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered June 24, 2016, convicting defendant, after a jury trial, of murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree (two counts), assault in the third degree, robbery in the second degree (two counts), conspiracy in the first degree, and conspiracy in the third degree (two counts), and sentencing him to an aggregate prison term of 50 years to life, unanimously affirmed.

The court properly denied defendant's suppression motion.  An officer's observation of a person pushing a uniformed officer and running away from an altercation between two large groups in which other officers were intervening provided at least reasonable suspicion that “criminal activity” was “at hand” (see People v. Brannon, 16 NY3d 596, 602 [2011] ), and justified the officer in stopping and patting down defendant.  When the officer felt objects in defendant's pockets which he believed were bullets, based on their general feel and texture, the officer had probable cause to believe that defendant had committed a crime and lawfully reached into defendant's pocket to recover the bullets (see generally People v. Ellis, 62 N.Y.2d 393, 397 [1984] ).  There is no basis for disturbing the court's credibility determinations, which are accorded great deference (see People v. Prochilo, 41 N.Y.2d 759, 761 [1977] ).  Defendant's largely unpreserved claims of misconduct by the prosecutor and the court at the suppression hearing are unsupported and unavailing.

By failing to object to the court's ruling denying a mistrial or preclusion of a cooperating witness's unnoticed identification testimony, defendant waived his current claim.  As an alternative holding, we find that the court correctly determined that the cooperating witness was sufficiently familiar with defendant, and that his identification of defendant was confirmatory (see People v. Rodriguez, 79 N.Y.2d 445, 451–453 [1992] ).  The witness identified defendant by his gang nickname, and explained that he recognized defendant, a member of a rival gang, from fights with that gang in which defendant was present.  The witness also explained that he had familiarized himself with the appearance of rival gang members by looking at their Facebook profiles because the gang rivalry presented “a life-threatening situation.”

The court properly declined imposing a sanction for a missing 911 call and a retired detective's lost memo book.  There was no bad faith on the part of the People and no prejudice to defendant (see People v. Martinez, 71 N.Y.2d 937, 940 [1988] ).  The 911 call did not constitute Rosario material because it did not contain a statement made by a witness whom the People intended to call at trial (see former CPL 240.45[1][a];  People v. Rojas, 29 AD3d 405, 406 [1st Dept 2006], lv denied 7 NY3d 794 [2006] ), and any claim that the 911 call would have assisted defendant in his defense is speculative (see People v. Diaz, 47 AD3d 500, 501 [1st Dept 2008], lv denied 10 NY3d 861 [2008] ).  Any Rosario claim as to the lost memo book is unpreserved.

Expert testimony on gang activity did not exceed the limitations outlined in People v. Inoa (25 NY3d 466, 472–475 [2015] ).  The officers properly testified about their own observations and the fixed meaning of gang code words (see People v. Pinkston, 169 AD3d 520, 520–521 [1st Dept 2019], lv denied 33 NY3d 1107 [2019] ).

The court did not err by permitting the officers, who were familiar with defendant but were not eyewitnesses, to give lay opinion testimony, as the testimony “served to aid the jury in making an independent assessment regarding whether the [man] in the [video] was indeed the defendant” (see People v. Russell, 79 N.Y.2d 1024, 1025 [1992];  Pinkston, 169 AD3d at 521).  Given the poor quality of the surveillance tapes, the testimony of the officer, as a person who had spent hundreds of hours viewing the footage and studying the physical traits of the gang members, was helpful both in identifying defendant and explaining the rapid-paced images in the footage drawn from numerous video cameras (see People v. Boyd, 151 AD3d 641, 641 [1st Dept 2017], lv denied 29 NY3d 1124 [2017] ).

The court properly admitted videos and social media posts, including a video which depicted defendant punching and knocking out a non-gang member victim that defendant posted, as they were directly relevant to the charged conspiracies.  Thus, the videos and social media posts did not constitute Molineux evidence (see People v. Frumusa, 29 NY3d 364, 369–370 [2017] ).

Defendant's claim that the third-degree assault count should not have been submitted to the jury as a lesser included offense is unpreserved (see People v. Ford, 62 N.Y.2d 275, 279 [1984];  People v. Appolon, 121 AD3d 596, 597 [1st Dept 2014], lv denied 27 NY3d 991 [2016] ), and we decline to review it in the interest of justice.

Defendant's right to be present at any material stage of his trial was not violated by his absence from the court's discussion of jury notes with the attorneys during the first day of deliberations.  Although defendant's presence was not noted on the record when the court gave supplemental instructions and readbacks to the jury, a presumption of regularity attaches to judicial proceedings (see People v. Velasquez, 1 NY3d 44, 48 [2003] ) and the failure to record a defendant's presence is insufficient to meet the defendant's burden of rebutting the presumption of regularity (see Velasquez, 1 NY3d at 48).  Nor was defendant deprived of his right to be present at all material stages of trial by his absence from a conference regarding an evidentiary application (see People v. Jamison, 303 A.D.2d 603, 603 [2d Dept 2003], lv denied 100 N.Y.2d 562 [2003] ).  Further, a court does not violate a defendant's right to be present by delegating to a court officer “the ministerial function of giving the jury the ‘usual’ separation instructions” at the end of a day of deliberations (People v. Brown, 142 AD3d 769, 771 [1st Dept 2016], lv denied 28 NY3d 1125 [2016] ).

Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it involves matters of strategy not reflected in or fully explained by the record, which may not be addressed on appeal in the absence of a CPL 440.10 motion (see People v. Maffei, 35 NY3d 264, 269–270 [2020] ).  To the extent that the existing record permits review, we find that defendant received effective assistance under state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714 [1998];  Strickland v. Washington, 466 U.S. 668 [1984] ).

We perceive no basis for reducing the sentence.