PEOPLE v. COOPER (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Jill Konviser, J.), rendered January 30, 2020, convicting him of murder in the second degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was charged with one count of murder in the second degree (Penal Law § 125.25[1]) and two counts of criminal possession of a weapon in the second degree (id. § 265.03[1][b];  [3]) based on, inter alia, surveillance video showing him and another person firing three shots at the decedent from point-blank range in a courtyard of the public housing complex where all three lived.  Following a jury trial, the defendant was convicted of all counts.

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, 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, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Upon reviewing the record here, we are satisfied that the verdict of guilt as to the conviction of murder in the second degree 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 failed to preserve for appellate review his contention that the Supreme Court erred by failing to submit the lesser included offense of manslaughter in the first degree to the jury.  In any event, the defendant's contention is without merit.  “ ‘A party who seeks to have a lesser included crime charged to the jury must satisfy a two-pronged inquiry’ ” (People v. Bonich, 208 A.D.3d 679, 680, 171 N.Y.S.3d 910, quoting People v. Rivera, 23 N.Y.3d 112, 120, 989 N.Y.S.2d 446, 12 N.E.3d 444;  see People v. Van Norstrand, 85 N.Y.2d 131, 135, 623 N.Y.S.2d 767, 647 N.E.2d 1275).  “First, [the] defendant must establish that it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct.  Secondly, there must be a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater” (People v. Van Norstrand, 85 N.Y.2d at 135, 623 N.Y.S.2d 767, 647 N.E.2d 1275).  The evidence must be viewed in the light most favorable to the defendant (see People v. Rivera, 23 N.Y.3d at 120–121, 989 N.Y.S.2d 446, 12 N.E.3d 444).  Here, the evidence adduced at trial demonstrated that the decedent was shot directly in the chest at point-blank range after the defendant had paced the courtyard for approximately 10 minutes.  Viewing the record in the light most favorable to the defendant, there was no reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater offense (see People v. Bonich, 208 A.D.3d at 681, 171 N.Y.S.3d 910;  People v. Salton, 120 A.D.3d 838, 991 N.Y.S.2d 370).

The defendant's contention that Penal Law § 265.03(3) is unconstitutional in light of the decision in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 is unpreserved for appellate review, as the defendant failed to raise a constitutional challenge before the Supreme Court (see People v. Cabrera, 41 N.Y.3d 35, 42–51, 207 N.Y.S.3d 18, 230 N.E.3d 1082;  People v. Belizaire, 222 A.D.3d 875, 877, 202 N.Y.S.3d 253;  People v. Manners, 217 A.D.3d 683, 685, 191 N.Y.S.3d 90).  In any event, the defendant's contention is without merit because the ruling in Bruen had no impact on the constitutionality of New York State's criminal possession of a weapon statutes (see People v. Belizaire, 222 A.D.3d at 877, 202 N.Y.S.3d 253;  People v. Joyce, 219 A.D.3d 627, 628, 194 N.Y.S.3d 303;  People v. Manners, 217 A.D.3d at 686, 191 N.Y.S.3d 90).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675).

BRATHWAITE NELSON, J.P., WOOTEN, WARHIT and VENTURA, JJ., concur.