PEOPLE v. WRIGHT (2005)

Appeal from a judgment of the County Court of Schenectady County (Tomlinson, J.), rendered January 3, 2003, upon a verdict convicting defendant of the crimes of robbery in the first degree (three counts), robbery in the second degree, criminal possession of a weapon in the second degree, assault in the second degree, criminal possession of a weapon in the third degree (six counts), conspiracy in the fourth degree and reckless endangerment in the first degree.

Defendant was convicted, following a jury trial, of 14 felonies arising from a series of gang-related crimes in the City of Schenectady, Schenectady County, between October 2000 and February 2001.   In the first incident, on the evening of October 12, 2000 while attempting to exact revenge against a rival gang member who fled, defendant opened fire along a city street and shot a young woman walking nearby on the sidewalk (the Lincoln Avenue shooting).   Defendant was convicted of assault in the second degree, reckless endangerment in the first degree and criminal possession of a weapon in the third degree (two counts).   The second incident occurred on January 4, 2001 during which a fellow gang member, Elliott Felder, was lured behind an abandoned garage and shot and killed for breaking gang rules.   Defendant was acquitted of second degree murder and other related charges, but convicted of two counts of criminal possession of a weapon in the third degree.   The following month, defendant, along with Robert Evans and another gang member, conspired to rob Evans' cousin who was on parole, using as a ruse the sale of a gun at a house on Eagle Street (the Eagle Street robbery).   During that episode, they robbed the cousin and another man at gunpoint taking cash, jewelry, coats and a gun, and then left when interrupted by two unarmed friends of the victim who entered the house.   Defendant was convicted of three counts of robbery in the first degree, robbery in the second degree, conspiracy in the fourth degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree (two counts). Upon his convictions, defendant was sentenced to an aggregate prison term of 40 1/313 to 43 years.   Defendant now appeals, and we affirm.

 Initially, defendant contends that the counts in the indictment charging him with robbery are each duplicitous (see CPL 200.30) in that two victims are specified in the bill of particulars for each of the robbery counts.   However, defendant waived this objection to the indictment by failing to move to dismiss on this ground, as required, prior to trial (see CPL 200.70, 200.95[8];  210.20, 255.20) despite clear notice that two victims were alleged as to each robbery count, first raising the issue in an untimely, oral motion after the jury had already been charged (see People v. Raymo, 19 A.D.3d 727, 728-729, 796 N.Y.S.2d 448 [2005], lv. denied 5 N.Y.3d 793, 801 N.Y.S.2d 814, 835 N.E.2d 674 [2005];  People v. Morey, 224 A.D.2d 730, 731, 637 N.Y.S.2d 500 [1996], lv. denied 87 N.Y.2d 1022, 644 N.Y.S.2d 156, 666 N.E.2d 1070 [1996];  People v. James, 98 A.D.2d 863, 865, 471 N.Y.S.2d 158 [1983];  People v. Branch, 73 A.D.2d 230, 234-235, 426 N.Y.S.2d 291 [1980] ).   Had a timely motion been made, the People would have had an opportunity, if necessary, to amend the indictment or bill of particulars (see CPL 200.70[1];  200.95[8];  see People v. James, supra ).   Under these circumstances, we decline to take corrective action in the interest of justice (see CPL 470.15[3] [c] ).

 Next, defendant challenges all aspects of the jury's verdict as against the weight of the credible evidence, except the Eagle Street weapons possession counts.   In the Lincoln Avenue shooting, the victim testified that while she was not able to identify defendant-who she did not previously know-as the person who shot her, she was able to identify him from two encounters days later in which he apologized and admitted to shooting her, explaining his motive and that his target had been a rival gang member.   Neither the victim's inability to positively identify defendant from a photo array (she selected defendant's photo as the one who looked most like the apologist) nor any other aspect of her testimony rendered it unworthy of belief or implausible (see People v. Walker, 279 A.D.2d 696, 698, 719 N.Y.S.2d 322 [2001], lv. denied 96 N.Y.2d 869, 730 N.Y.S.2d 44, 754 N.E.2d 1127 [2001];  People v. Denis, 276 A.D.2d 237, 245-246, 716 N.Y.S.2d 718 [2000], lvs. denied 96 N.Y.2d 782, 725 N.Y.S.2d 646, 749 N.E.2d 215, 96 N.Y.2d 861, 730 N.Y.S.2d 35, 754 N.E.2d 1118 [2001] ).   Her testimony was corroborated by Evans' testimony that defendant had boasted about and described the shooting and recounted having contact with the victim after the shooting.   Two other witnesses testified to conversations with defendant in which he admitted the shooting.   Despite the nonvictim witnesses' criminal histories and the fact they testified pursuant to cooperation agreements in which they received leniency, the witnesses' potential bias was fully explored on cross-examination;  their testimony was not incredible but, rather, was consistent with the victim's credible account and no compelling contradictory evidence was presented (see People v. Allen, 13 A.D.3d 892, 894, 787 N.Y.S.2d 417 [2004], lv. denied 4 N.Y.3d 883, 798 N.Y.S.2d 728, 831 N.E.2d 973 [2005];  People v. Walker, supra;  People v. Denis, supra ).   Deferring to the jury's first-hand opportunity to observe these witnesses, we find no merit to defendant's claim that the verdict related to this shooting was contrary to the weight of credible evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987];  People v. Allen, supra;  People v. Denis, supra ).

 We are similarly unpersuaded by defendant's challenges to his other convictions.   Defendant's possession of a loaded handgun on the night of Felder's murder was established by the testimony of a fellow gang member who witnessed the murder, as well as by Evans' account of seeing defendant with the gun.   Next, with regard to defendant's conspiracy to commit and planned participation in the Eagle Street robbery, ample testimony was introduced including that of Evans and the two victims who identified defendant.   Also testifying were the friends who arrived during the robbery-one of whom was able to identify defendant.   Viewing the evidence in a neutral light, we find that all of the convictions were supported by the weight of consistent, credible and believable testimony (see People v. Bleakley, supra ).

 We also find without merit defendant's claim that the prosecutor's redirect questioning of a witness deprived him of a fair trial.   Defense counsel promptly objected, the witness never answered the second question and County Court provided a strong curative instruction directing the jury to disregard the questions, ameliorating any prejudice (see People v. McCombs, 18 A.D.3d 888, 890, 795 N.Y.S.2d 108 [2005] ).   Indeed, defendant was acquitted of the Felder murder to which one of the questions related, undermining a claim of undue prejudice.

Next, upon review of County Court's instruction to the jury addressing “reasonable doubt,” derived from the first revised edition of the Criminal Jury Instructions, we find that it sufficiently conveyed the correct principles (see People v. Johnson, 307 A.D.2d 384, 385, 761 N.Y.S.2d 402 [2003], lv. denied 1 N.Y.3d 574, 775 N.Y.S.2d 791, 807 N.E.2d 904 [2003] ).   It neither shifted nor reduced the burden of proof (see People v. Setless, 289 A.D.2d 708, 709, 734 N.Y.S.2d 658 [2001], lv. denied 98 N.Y.2d 640, 744 N.Y.S.2d 769, 771 N.E.2d 842 [2002] ), nor suggested that jurors were obligated to articulate the basis for any reasonable doubt they harbored (see People v. Antommarchi, 80 N.Y.2d 247, 251-252, 590 N.Y.S.2d 33, 604 N.E.2d 95 [1992];  People v. Memminger 1 A.D.3d 292, 292, 768 N.Y.S.2d 6 [2003], lv. denied 1 N.Y.3d 631, 777 N.Y.S.2d 29, 808 N.E.2d 1288 [2004] ).   Finally, despite defendant being 19 years old at the time of these crimes, we cannot say that County Court's imposition of maximum consecutive sentences was an abuse of discretion, and we discern no extraordinary circumstances warranting modification in the interest of justice (see People v. Dolphy, 257 A.D.2d 681, 685, 685 N.Y.S.2d 485 [1999], lv. denied 93 N.Y.2d 872, 689 N.Y.S.2d 434, 711 N.E.2d 648 [1999] ).   Defendant has an extensive, violent criminal history (see People v. Wright 1 A.D.3d 707, 766 N.Y.S.2d 730 [2003], lv. denied 1 N.Y.3d 636, 777 N.Y.S.2d 34, 808 N.E.2d 1293 [2004] ) and the accounts of these crimes reflect his willingness to instill fear in his victims, to engage in violence and to endanger the lives of others.

ORDERED that the judgment is affirmed.

SPAIN, J.

CARDONA, P.J., MERCURE, CARPINELLO and LAHTINEN, JJ., concur.