PEOPLE v. MALDONADO (2026)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Roger McDonough, J.), rendered May 3, 2024 in Albany County, upon a verdict convicting defendant of the crimes of attempted murder in the second degree and criminal possession of a weapon in the second degree.

In April 2023, the victim was driving in the City of Albany when he saw defendant, who dated the victim's late daughter, walking on the nearby sidewalk.  As memorialized on video surveillance footage, defendant approached the victim's vehicle and fired a pistol in his direction.  The victim drove away, called police and reported that defendant shot at him.  Defendant was charged by indictment with attempted murder in the second degree and criminal possession of a weapon in the second degree.  Following a jury trial, defendant was convicted as charged and Supreme Court sentenced him, as a second felony offender, to an aggregate prison term of 23 years, to be followed by five years of postrelease supervision.  Defendant appeals, and we affirm.

Defendant first argues that the evidence is not legally sufficient to support his convictions and that the verdict is against the weight of the evidence.  Specifically, he argues that the People failed to prove that he was the shooter and, as to the attempted murder conviction, that he intended to kill the victim.  “When assessing the legal sufficiency of a jury verdict, we view the facts in the light most favorable to the People and examine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” (People v. Zeoli, 248 AD3d 1422, 1423 [3d Dept 2026] [internal quotation marks and citations omitted], lv denied 45 NY3d 1042 [2026];  see People v. Cipriani, 244 AD3d 1295, 1295–1296 [3d Dept 2025], lv denied 44 NY3d 1064 [2026] ).  In reviewing the weight of the evidence, we “first determine whether, based upon all of the credible evidence, a different finding would have been unreasonable and, if not, we then weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence” (People v. Lerario, 246 AD3d 1281, 1283 [3d Dept 2026] [internal quotation marks and citations omitted], lv denied 45 NY3d 1039 [2026] ).

As relevant here, “[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he [or she] engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00);  the defendant's acts must come “dangerously close to committing the intended crime” (People v. Lendof–Gonzalez, 36 NY3d 87, 89 [2020] [internal quotation marks and citation omitted] ).  A person is guilty of attempted murder in the second degree when with the intent to cause the death of another person he or she attempts to cause that person's death (see Penal Law §§ 110.00, 125.25[1] ).  Criminal possession of a weapon in the second degree occurs, as charged here, when an individual “possesses any loaded firearm” outside of his or her “home or place of business” (Penal Law § 265.03[3] ).  “Finally, as an implicit but necessary element of each and every crime, the People must prove beyond a reasonable doubt the identity of the defendant as the person who committed the crime” (People v. Moore, 247 AD3d 1251, 1253 [3d Dept 2026] [internal quotation marks and citations omitted], lv denied 45 NY3d 1017 [2026];  see People v. Zeoli, 248 AD3d at 1424;  People v. Cipriani, 244 AD3d at 1296).

At trial, the People established that the victim and defendant were acquainted through defendant's relationship with the victim's late daughter.  On the day of the shooting, the victim drove near Lark and Orange Streets in the City of Albany when he saw defendant walking nearby.  Defendant recognized the victim, approached his vehicle and stated, “I could do you dirty, old man”;  defendant then pulled a pistol from his jacket and fired into the victim's car from close range as he drove away.  The victim drove to his residence and called 911.  When officers responded, the victim named defendant as the shooter and later identified him in a photo array.  Video surveillance footage captured the encounter and showed that the shooter wore a black jacket with white zippers, black pants, black-and-white sneakers, a black hat and sunglasses.  The footage showed the shooter look at the victim's vehicle, step into the street, pull a gun from his jacket and fire toward the driver.  Investigators traced the shooter's movements by obtaining additional video surveillance footage showing him enter an apartment building on Lark Street less than two minutes after the shooting.  Police were also able to track the location of a cell phone linked to defendant through its iCloud data, including photographs of defendant and images of his personal documents.  Phone records showed that, shortly after the shooting, the same device placed a call to the woman seen walking with defendant in surveillance footage taken earlier that day.  After police arrived at the scene, that woman was observed outside the same apartment building the shooter had entered.

Witnesses and photographs established that the rear driver side window in the victim's vehicle was shattered.  Two officers observed a hole in the driver's headrest;  one described the damage as consistent with a projectile passing through it, and the victim stated that a bullet was lodged in the dashboard.  Police recovered a 10 millimeter expended shell casing from the shooting site and discovered a box of 10 millimeter ammunition during a search of a bedroom in the Lark Street apartment occupied by defendant's female acquaintance.

When defendant was arrested nearly two months after the shooting, he was wearing clothes almost identical to those worn by the shooter depicted in the surveillance video.  The People introduced defendant's recorded telephone call from jail in which he seemingly admitted his role in the incident, explaining that he did not “go looking for this dude” and that he was “walking somewhere” when “the car stopped in front of [him].”  Viewing these facts in a light most favorable to the People, we find that the verdict is supported by legally sufficient evidence.

First, as to defendant's identity, we find that the proof is legally sufficient because the victim knew defendant and identified him by name and in a photo array shortly after the shooting.  That identification was corroborated by surveillance video footage, proof of defendant's connection to the Lark Street apartment (where 10 millimeter ammunition was recovered), cell-site data for a phone linked to defendant, his arrest in clothing strikingly similar to that worn by the shooter and statements provided by his acquaintance (see People v. Zeoli, 248 AD3d at 1425;  People v. Grady, 233 AD3d 1369, 1371–1372 [3d Dept 2024], lv denied 43 NY3d 963 [2025] ).

The evidence is also legally sufficient to prove that defendant intended to kill the victim.  Intent may be inferred from the surrounding circumstances, defendant's actions, the totality of the circumstances or “from the natural and probable consequences of the defendant's conduct” (People v. Lewis, 224 AD3d 1143, 1147 [3d Dept 2024] [internal quotation marks and citations omitted], lv denied 42 NY3d 939 [2024] ).  Here, the video surveillance footage showed defendant fire a gun toward the driver at close range.  The shattered rear driver side window and the description of the bullet hole in the driver's headrest permitted the jury to infer that the shot was directed toward the retreating victim and traveled near his head (see People v. Calafell, 211 AD3d 1114, 1117 [3d Dept 2022], lv denied 39 NY3d 1077 [2023] ).  Viewing the evidence in the light most favorable to the People, the jury could rationally infer that defendant intended to cause the victim's death.  Accordingly, the verdict is supported by legally sufficient evidence.

Turning to our review of the weight of the evidence, a different verdict would not have been unreasonable if the jury discredited the victim's testimony due to his own criminal history, his refusal or inability to identify the passenger who was present in the vehicle during the shooting, his alleged bias against defendant and other inconsistencies revealed on cross-examination.  Nevertheless, viewing the evidence in a neutral light and deferring to the jury's credibility determinations, the verdict is supported by the weight of the evidence.  As previously discussed, the victim's identification was corroborated by other evidence and the manner in which defendant discharged the firearm supported the jury's finding of intent (see People v. Zeoli, 248 AD3d at 1425;  People v. Lerario, 246 AD3d at 1284).

Next, we address defendant's claim, as so limited by his brief, that Supreme Court improperly admitted doorbell camera video footage, offered as Molineux evidence, showing a man, purportedly defendant, firing a gun inside a Brooklyn apartment building approximately one week before the Albany shooting.  Ballistics tests established that the same gun was used in the Lark Street shooting.  After reviewing the doorbell camera video footage, Supreme Court found a “compelling argument” that defendant was the shooter depicted therein, concluded that the ballistic match connected the Brooklyn evidence to the identity of the instant perpetrator and admitted the evidence over defendant's objection.  Evidence of uncharged crimes may be admitted under the Molineux rule to prove material non-propensity facts (see People v. Oquendo, 248 AD3d 1325, 1335 [3d Dept 2026], lv denied 45 NY3d 1018 [2026] ), including the defendant's identity (see People v. Harwood, 139 AD3d 1186, 1188 [3d Dept 2016], lv denied 28 NY3d 1028 [2016] ).  However, the People must first establish by clear and convincing evidence that defendant committed the uncharged crime (see People v. Robinson, 68 N.Y.2d 541, 548–550 [1986];  People v. Duncan, 188 AD3d 1249, 1250–1251 [2d Dept 2020], lv denied 36 NY3d 1050 [2021] ).  Supreme Court did not find that the video clearly and convincingly depicted defendant, instead concluding only that there was a “compelling argument” for that suggestion, falling short of the requisite standard (see People v. Robinson, 68 N.Y.2d at 550;  compare People v. Webb, 237 AD3d 546, 547 [1st Dept 2025], lv denied 43 NY3d 1049 [2025] ).  The doorbell camera video did not clearly show defendant's face or other distinctive traits and, apart from the ballistics match, the People presented no other evidence that he committed the Brooklyn crime (compare People v. Nunes, 168 AD3d 1187, 1192 [3d Dept 2019], lv denied 33 NY3d 979 [2019];  People v. Harwood, 139 AD3d at 1188;  People v. Littlejohn, 112 AD3d 67, 75–76 [2d Dept 2013], lv denied 22 NY3d 1140 [2014] ).  Thus, it was error to admit this evidence to show defendant's identity under Molineux, and Supreme Court's limiting instruction did not obviate the resulting prejudice.  Nevertheless, in light of the overwhelming other evidence establishing defendant as the Albany shooter, there is no significant probability that the jury would have acquitted defendant had evidence of the Brooklyn shooting been excluded, and any error was harmless (see People v. Henderson, ––– NY3d ––––, ––––, 2026 N.Y. Slip Op 01627, *6–7 [2026];  People v. Weinstein, 42 NY3d 439, 469–470 [2024];  People v. Hebert, 218 AD3d 1003, 1010–1011 [3d Dept 2023], lv denied 40 NY3d 1080 [2023] ).

Defendant next argues that Supreme Court erred in declining to submit to the jury the charge of attempted assault in the second degree (see Penal Law §§ 110.00, 120.05[1] ) as a lesser included offense of attempted murder in the second degree.  We disagree.  “A defendant is entitled to a lesser included offense charge upon request when (1) it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct and (2) there is a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater” (People v. Harris, 246 AD3d 1293, 1297 [3d Dept 2026] [internal quotation marks and citations omitted], lv denied 45 NY3d 971 [2026] ).  In assessing the second prong, the evidence must be viewed in the light most favorable to defendant (see People v. Rivera, 23 NY3d 112, 120–121 [2014] ).

Attempted assault in the second degree is a lesser included offense of attempted murder in the second degree (see People v. Hymes, 70 AD3d 1371, 1373 [4th Dept 2010], lv denied 15 NY3d 774 [2010] ).  Thus, the question distills to whether there was a reasonable view of the evidence that defendant intended to cause serious physical injury to the victim rather than his death.  Unlike in cases where a defendant was shooting at a moving or distant target, however, the evidence here did not support that inference (compare People v. Cabassa, 79 N.Y.2d 722, 729–730 [1992], cert denied 506 U.S. 1011 [1992] ).  To the contrary, a video of the shooting vividly shows defendant approach the driver side of the victim's vehicle as it idled in traffic, pull a handgun and aim it at the victim as he sat in the driver seat a few feet away.  Defendant tracked the vehicle with the handgun as it moved a few feet forward in traffic, stepped closer to the car, then fired through the rear driver side window toward the victim, and the trial evidence reflected that the bullet passed through the headrest just behind the victim's head.  We agree with Supreme Court that, even when viewed in the light most favorable to defendant, there is no reasonable view of that evidence from which a jury could find that defendant harbored the intent to seriously injure, rather than the intent to kill, the victim (see People v. Cruz, 221 AD3d 1423, 1428 [4th Dept 2023], lv denied 41 NY3d 1001 [2024];  People v. McMillian, 158 AD3d 1059, 1061 [4th Dept 2018], lv denied 31 NY3d 1119 [2018] ).  Accordingly, Supreme Court properly declined to submit the lesser included offense for the jury's consideration.

Defendant next contends that he was denied the effective assistance of counsel based upon his attorney's failure to object to improper identification evidence, i.e., an Albany detective's testimony concerning a bulletin issued by Brooklyn police seeking to identify an unknown subject.  The detective testified that, following defendant's arrest and after the shell casing found on Lark Street had been submitted for analysis, he responded to the Brooklyn bulletin and identified defendant as the individual pictured therein.  Defendant argues that the detective's testimony constituted improper non-eyewitness identification testimony and that counsel should have objected to it.

To establish a claim of ineffective assistance of counsel, “a defendant must establish that counsel failed to provide meaningful representation and thus deprived defendant of a fair trial.  This standard requires an objective assessment of counsel's representation as a whole in light of the evidence, the law, and the circumstances at the time of the representation” (People v. Ambrosio, 45 NY3d 646, 650, [2026] [internal quotation marks and citations omitted] ).  While a single error may amount to ineffective assistance, “[s]uch cases are rare” and the error must be “sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial” (id. [internal quotation marks and citations omitted];  see People v. Kent, 235 AD3d 1094, 1096 [3d Dept 2025], lv denied 43 NY3d 964 [2025] ).  The onus is on defendant to “demonstrate the absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct” (People v. Debellis, 40 NY3d 431, 436 [2023] [internal quotation marks and citation omitted] ).

Non-eyewitness identification testimony is admissible only “where the witness is sufficiently familiar with the defendant that their testimony would be reliable, and there is reason to believe the jury might require such assistance in making its independent assessment” (People v. Mosley, 41 NY3d 640, 642 [2024] ).  Here, however, the bulletin itself was not admitted into evidence, and the record does not clearly establish the relevant image.  Thus, it is not clear from the record that the challenged testimony constituted non-eyewitness identification testimony in the first instance.  In any event, counsel reasonably could have strategically viewed the testimony as background explaining how the Brooklyn events came to the attention of the Albany investigators.  When viewing the attorney's representation as a whole, counsel pursued a coherent “wrong man” defense, conducted effective cross-examination, opposed the admission of the Brooklyn shooting evidence, requested a lesser included offense charge and made appropriate trial motions.  Given the limited nature of the challenged testimony and the strength of the remaining proof identifying defendant as the Albany shooter, the alleged single error was not sufficiently egregious or prejudicial as to warrant a finding of ineffective assistance (see People v. Williams, 232 AD3d 1124, 1126 [3d Dept 2024], lv denied 43 NY3d 1059 [2025];  People v. Collins, 229 AD3d 846, 849 [3d Dept 2024] ).  Defendant alleges no other deficient conduct and, having reviewed defense counsel's representation in its totality, we are satisfied that defendant received meaningful representation.  To the extent that defendant alternatively seeks reversal in the interest of justice based upon the same alleged error, we decline to grant that relief.

Defendant's remaining contention that the sentence is unduly harsh or severe is unavailing.  In view of defendant's lengthy criminal history, the violent nature of the offense and defendant's lack of remorse, we discern no basis to reduce the sentence in the interest of justice (see People v. Monahan, 250 AD3d 1256, 1268 [3d Dept 2026];  People v. Wade, 249 AD3d 1425, 1427 [3d Dept 2026] ).

ORDERED that the judgment is affirmed.

Corcoran, J.

Clark, J.P., Pritzker, Ceresia and Mackey, JJ., concur.