PEOPLE v. KELSON (2023)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (William Garnett, J.), rendered March 12, 2020, convicting him of murder in the second degree, attempted murder in the second degree, conspiracy in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was convicted after a jury trial of murder in the second degree (Penal Law § 125.25[1]), attempted murder in the second degree (id. §§ 110.00, 125.25[1]), conspiracy in the second degree (id. § 105.15), and criminal possession of a weapon in the second degree (id. § 265.03[3]), in connection with the attempted shooting of a rival gang member in which a bystander was killed.  The Supreme Court imposed the sentences for the murder and attempted murder convictions to run concurrently with each other and consecutively to the conspiracy and weapon possession convictions, which were to run concurrently with each other.

The defendant's contention that the convictions were not supported by the weight of the evidence is without merit.  In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's contention that the Supreme Court improperly limited cross-examination of a prosecution witness is without merit.  The scope of cross-examination is within the sound discretion of the trial court, which may limit cross-examination when questions are irrelevant, concern collateral issues, or risk misleading the jury (see People v. Corby, 6 N.Y.3d 231, 234–235, 811 N.Y.S.2d 613, 844 N.E.2d 1135;  People v. Agosto, 203 A.D.3d 841, 841, 160 N.Y.S.3d 908).  Here, the court providently exercised its discretion in curtailing the cross-examination of the prosecution witness regarding an incident that allegedly took place during a non-relevant period of time (see People v. Agosto, 203 A.D.3d at 842, 160 N.Y.S.3d 908;  People v. Simms, 178 A.D.3d 963, 964, 112 N.Y.S.3d 523).

The Supreme Court providently exercised its discretion in precluding the defendant from making arguments in summation related to whether a third party was involved in the shooting death of the victim because such arguments were speculative and not supported by the evidence (see People v. Smith, 16 N.Y.3d 786, 787–788, 920 N.Y.S.2d 284, 945 N.E.2d 477;  People v. Kennedy, 177 A.D.3d 628, 630;  People v. Alicea, 159 A.D.3d 532, 533).

Contrary to the defendant's contention, the Supreme Court was not obligated to impose the sentences for murder in the second degree and attempted murder in the second degree to run concurrently with the sentences imposed for conspiracy in the second degree and criminal possession of a weapon in the second degree (see Penal Law § 70.25[2]).  Concurrent sentences are required only “for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other” (id. § 70.25[2]).  Here, the People established that the acts constituting conspiracy in the second degree were separate and distinct from the acts constituting the crimes of murder in the second degree and attempted murder in the second degree (see People v. Arroyo, 93 N.Y.2d 990, 992, 695 N.Y.S.2d 537, 717 N.E.2d 696;  People v. Alfonso, 142 A.D.3d 1180, 1183, 38 N.Y.S.3d 566).  The People also established that the defendant knowingly possessed the loaded firearm prior to forming the intent to commit murder with that weapon (see People v. Malloy, 33 N.Y.3d 1078, 1080, 104 N.Y.S.3d 595, 128 N.E.3d 673;  People v. Brown, 21 N.Y.3d 739, 750–751, 977 N.Y.S.2d 723, 999 N.E.2d 1168).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

DILLON, J.P., BRATHWAITE NELSON, MILLER and MALTESE, JJ., concur.