THE PEOPLE OF THE STATE OF NEW YORK v. DEMETRIES SMITH (2026)

MEMORANDUM AND ORDER

Calendar Date:  September 16, 2026

Appeal from a judgment of the Supreme Court (Roger McDonough, J.), rendered July 14, 2023 in Albany County, upon a verdict convicting defendant of the crimes of attempted murder in the first degree, attempted murder in the second degree (two counts), attempted robbery in the first degree and criminal possession of a weapon in the second degree (three counts).

On the early evening of October 6, 2021, three men approached an idling vehicle outside a convenience store, accosted the driver, and fired a sawed-off shotgun and handgun into the vehicle, striking victim A in the hip.  A week later, in the evening of October 13, two men, armed with a sawed-off shotgun, rang an apartment doorbell and immediately fired two shots when victim B opened the door, striking him in the chest.  Investigators linked defendant, who was on parole, to both shootings partially based on data from his GPS ankle monitor, leading to his arrest the next day.  Meanwhile, the police executed two search warrants at residences frequented by defendant, where investigators discovered in one apartment a sawed-off shotgun, ammunition, clothing and a wallet with identification cards bearing defendant's name and photograph.  Defendant was charged by indictment with attempted murder in the first degree (count 1), two counts of attempted murder in the second degree (counts 2 and 5), attempted robbery in the first degree (count 3) and three counts of criminal possession of a weapon in the second degree (counts 4, 6 and 7).  Following a jury trial, defendant was convicted as charged.  Supreme Court sentenced defendant, as a persistent violent felony offender, to a total maximum prison term of 75 years to life, which was reduced to the statutory cap of 50 years to life (see Penal Law § 70.30[1][e][vi] ).  Defendant appeals.

Defendant contends that the verdict is against the weight of the evidence with regard to counts 1, 2, 5 and 6. When undertaking such analysis, we view the evidence in a neutral light and “must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and 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. Mack, 244 AD3d 1289, 1290 [3d Dept 2025] [internal quotation marks and citations omitted] ).  As relevant here, “[a] person is guilty of murder in the first degree when ․ [w]ith intent to cause the death of another person, he [or she] causes the death of such person ․ [and] the victim was killed while the defendant was in the course of committing or attempting to commit and in furtherance of robbery” (Penal Law § 125.27[1][a][vii] ).  “A person is guilty of robbery in the first degree when he [or she] forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he [or she] or another participant in the crime ․ [i]s armed with a deadly weapon” (Penal Law § 160.15[2] ).  “A person is guilty of murder in the second degree when ․ [w]ith intent to cause the death of another person, he [or she] causes the death of such person” (Penal Law § 125.25[1] ).  The counts of attempted first- and second-degree murder and first-degree robbery with which defendant was charged require proof that defendant came “dangerously near commission of the completed crime[s]” (People v. Lendof–Gonzalez, 36 NY3d 87, 93 [2020] [internal quotation marks and citation omitted];  see Penal Law § 110.00).  As further pertinent to counts 3, 5 and 6, “[w]hen one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he [or she] solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct” (Penal Law § 20.00).

The evidence at trial included, among other things, numerous video exhibits that portray the underlying events.  Relating to the first shooting on October 6, 2021, the footage depicts defendant and two other men exit defendant's vehicle and walk approximately a block to the convenience store.¹  As the three men approach the storefront, defendant pulls out a sawed-off shotgun and another man draws a handgun – causing individuals near the storefront to scatter.  While the man with the handgun confronts another individual and appears to take possessions from him, defendant and the third man approach the driver side door of the vehicle that victim A was sitting inside.  Defendant is seen opening the door and aiming his shotgun toward victim A, as he and the third man repeatedly reach into the vehicle and return their hands into their pockets or pick objects off the ground.  Defendant then fires one shot into the vehicle, and as defendant is fleeing, the man with the handgun approaches the passenger side and also shoots once into the vehicle.  The trio then flees to defendant's vehicle.  Investigators recovered shell casings from outside the convenience store and shotgun wadding from inside the vehicle, as well as jewelry and money on the ground.  According to investigators, defendant was identified as a possible suspect on the same day of the shooting based on the video footage of him and his vehicle, which police located parked near a residence that defendant was known to visit.

With regard to the second shooting on October 13, 2021, victim B testified that he rented the downstairs floor of an apartment to defendant's cousin and would see defendant almost daily.  According to victim B, sometime before the shooting, he had an argument with defendant's cousin about the apartment.  Following this, on the day of the shooting, defendant attempted to enter the cousin's apartment, but victim B refused defendant entry as the cousin was not home and defendant gave him “an evil look” in return.  Later that evening, victim B answered the front door and he was immediately shot twice in the chest.  Although unclear at times, when asked who shot him, victim B testified that defendant was present during the shooting.  Video footage of the shooting depicts victim B arriving home shortly before two individuals approach his door with what appears to be a sawed-off shotgun, before the individuals step off the porch and one individual aims the shotgun toward the door, bracing himself as at least one muzzle flash can be seen.²  As both men turn to leave, one is seen wearing black pants with vertical white stripes.  Responding police officers found victim B with gunshot wounds to his upper body, observed holes in the front door and damage in the entranceway of the apartment consistent with birdshot or buckshot, as well as shotgun wadding in the doorway.  A detective at the scene testified that witnesses identified the suspects' vehicle as a black SUV, possibly a Jeep, which the police located on city surveillance camera footage and were able to track via license plate readers, effectuating a traffic stop later that evening and detaining the two occupants.  One of the occupants matched the description of the shooter, who ultimately provided a detective access to his cell phone, leading to the discovery of a text message exchange with defendant shortly before the shooting.  Such exchange suggested something was about to happen in response to an incident involving defendant's cousin.

The People also presented the testimony of a crime analyst, who explained how he used GPS data from defendant's ankle monitor to map his movements in relation to both shootings and leading up to his arrest.  In conjunction with this data, law enforcement officers testified how defendant's movements corresponded with the camera footage from city and privately owned cameras.  In doing so, law enforcement highlighted city camera footage depicting an individual entering a black Jeep with a black duffle bag shortly before the shooting.  Body camera footage of defendant's arrest on the following morning depicted defendant wearing black pants with vertical white stripes.  Other clothing discovered in the search of one of the apartments matched the clothing worn by defendant during the first shooting, as well as his wallet.  A black duffle bag with a sawed-off shotgun was found in the closet along with a mix of different types of shotgun ammunition, including shells containing birdshot.  During a recorded call from the jail, defendant acknowledged that he owned clothes similar to what the suspects were wearing and that he was in the area of each shooting when it took place.  Subsequent DNA testing was unable to affirmatively link defendant's DNA to the sawed-off shotgun.

Based on the foregoing, a different verdict would not have been unreasonable had the jury rejected the People's theory that defendant was not just present but participated in each incident, discredited the testimony of victim B, and ascribed greater weight to the lack of DNA evidence.  Nonetheless, we are satisfied that, viewing the evidence in a neutral light, the elements of each challenged count are supported by the weight of the evidence.  Relating to the first- and second-degree attempted murder charges under counts 1 and 2, arising from the shooting on October 6, 2021, the video evidence depicts an assailant pointing a sawed-off shotgun at victim A, discharging it directly next to him and causing significant damage to the metal door jamb, providing sufficient grounds to support the requisite criminal intent that the shooter came dangerously close to causing the death of victim A (see People v. Lewis, 224 AD3d 1143, 1148–1149 [3d Dept 2024], lv denied 42 NY3d 939 [2024];  People v. Warner, 194 AD3d 1098, 1104 [3d Dept 2021], lv denied 37 NY3d 1030 [2021] ).  The extensive video evidence of the incident, matching clothing found in the apartment with defendant's wallet, the recorded call from the correctional facility and the corresponding GPS tracking data from defendant's ankle monitor, all permitted the jury to identify defendant as the assailant wielding the sawed-off shotgun (see People v. Moore, 247 AD3d 1251, 1253 [3d Dept 2026], lv denied 45 NY3d 1017 [2026];  People v. Hines, 214 AD3d 1117, 1119 [3d Dept 2023], lv denied 39 NY3d 1155 [2023] ).  The photographic evidence of the money and jewelry in the street, when combined with the repetitive motions captured on camera of defendant reaching into and out of the vehicle, all support the conclusion that defendant engaged in a robbery (see People v. Terry, 240 AD3d 1128, 1130 [3d Dept 2025], lv denied 44 NY3d 995 [2025];  People v. Young, 152 AD3d 981, 982 [3d Dept 2017], lv denied 30 NY3d 955 [2017] ).  When deferring to the jury's factual determinations and credibility assessments, we conclude that the weight of the evidence supports defendant's convictions under counts 1 and 2 for attempted murder in the first degree and attempted murder in the second degree (see People v. Riddick, 242 AD3d 1438, 1439 [3d Dept 2025], lv denied 44 NY3d 1054 [2025];  People v. Collier, 146 AD3d 1146, 1150 [3d Dept 2017], lv denied 30 NY3d 948 [2017] ).

With regard to the second-degree attempted murder and criminal possession of a weapon charges under counts 5 and 6, relating to the shooting on October 13, 2021, there was proof that defendant was planning something with the shooter immediately prior to the incident and that defendant had been present at the time of the shooting.  The testimony at trial established that victim B had been shot twice in the chest with a shotgun and doctors were unable to remove several pellets that were too close to his heart, supporting the jury's conclusion that the shooter came dangerously near causing the death of another person.  Evidence that defendant possessed that shotgun and intentionally aided the shooter by supplying the weapon is supported by the city video footage depicting an individual entering a black Jeep carrying a duffle bag shortly before the shooting, that neither the duffle bag nor the shotgun were discovered with the shooter in the traffic stop after the incident, and that a similar duffle bag containing a sawed-off shotgun was discovered the day after the incident in an apartment frequented by defendant, as confirmed by GPS tracking data and the presence of his wallet (see People v. Graham, 233 AD3d 1361, 1364–1365 [3d Dept 2024], lv denied 43 NY3d 944 [2025] ).  When considering the evidence in a neutral light and according deference to the jury's ability to evaluate credibility and the evidence, we find that defendant's convictions under count 5 and 6 are also supported by the weight of the evidence (see People v. Noble, 244 AD3d 1499, 1505–1506 [3d Dept 2025];  People v. Jenkins, 215 AD3d 1118, 1122 [3d Dept 2023], lv denied 40 NY3d 997 [2023];  People v. Demellier, 174 AD3d 1120, 1122–1123 [3d Dept 2019], lv denied 34 NY3d 980 [2019] ).

In light of these determinations, “defendant's challenge[ ] to the sufficiency of the evidence presented ․ to the grand jury [is] precluded by our determination that the convictions were not against the weight of the evidence, which establishes that they were necessarily supported by legally sufficient evidence” (People v. Vega, 170 AD3d 1266, 1273 [3d Dept 2019], lv denied 33 NY3d 1074 [2019] ).  Our further review of the grand jury minutes “fails to reveal any errors in the People's presentation of the case that impaired the integrity of the proceedings or prejudiced defendant that would warrant the exceptional remedy of reversal” (People v. Robinson, 156 AD3d 1123, 1128 n 8 [3d Dept 2017], lv denied 30 NY3d 1119 [2018];  see People v. Gibbs, 34 AD3d 1120, 1122 [3d Dept 2006] ).

Next, defendant contends that the police violated his Fourth Amendment rights by accessing his ankle monitor GPS tracking data without a warrant.  We disagree.  In seeking the suppression of evidence obtained by use of his GPS tracking data, defendant bore “the burden of establishing standing by demonstrating a legitimate expectation of privacy in the premises or object searched” (People v. Ramirez–Portoreal, 88 N.Y.2d 99, 108 [1996] ).  “A legitimate expectation of privacy exists where [the] defendant has manifested an expectation of privacy [a subjective component] that society recognizes as reasonable [an objective component]” (People v. Leach, 21 NY3d 969, 971 [2013] [internal quotation marks and citation omitted] ).  Although “a parolee does not surrender his or her constitutional rights against unreasonable searches and seizures merely by virtue of being on parole,” parolees nevertheless have a “reduced expectation of privacy” (People v. McMillan, 29 NY3d 145, 148 [2017] [internal quotation marks, brackets and citation omitted];  see Samson v. California, 547 U.S. 843, 852 [2006];  Matter of Karlin v. Stanford, 42 NY3d 1015, 1017 [2024] ).  Therefore, “in any evaluation of the reasonableness of a particular search or seizure, whether undertaken by parole or police officers, the fact of [the] defendant's status as a parolee is always relevant and may be critical” (People v. Thomas, 42 NY3d 236, 241 [2024] [internal quotation marks and citations omitted] ).

Here, defendant's affidavit in support of his motion to suppress contended that he had a reasonable expectation of privacy from a search and seizure by the police because, although he knew his location was being tracked by his parole officer through his ankle monitor as a condition of parole, he did not consent to the police tracking his location with such device.  Even assuming defendant subjectively believed that the GPS tracking data collected by his state-issued ankle monitor was private – despite knowing that he was under constant monitoring as a condition of his parole – that expectation was not objectively reasonable or justiciable under the circumstances presented here (see White v. United States, 363 A3d 1170, 1176–1177 [DC Ct App 2026, Nos. 21–CF–0310 & 23–CO–0288];  United States v. Jackson, 214 A3d 464, 486–487 [DC Ct App 2019];  United States v. Gaines, 2021 WL 4263375, *7, 21 U.S. Dist LEXIS 178378, *20–21 [D Conn, Sept 20, 2021, No. 3:20cr126 (JBA) ];  Garcia v. Commonwealth, 486 Mass 341, 356–357 [2020];  see generally People v. Ashcroft, 233 AD3d 1080, 1083 [3d Dept 2024], lv denied 43 NY3d 961 [2025];  People v. Slivienski, 204 AD3d 1228, 1237 [3d Dept 2022], lv denied 38 NY3d 1136 [2022];  People v. Diaz, 33 NY3d 92, 98–99 [2019], cert denied 589 U.S. 1015 [2019] ).  Defendant's reliance on Carpenter v. United States (585 U.S. 296, 311–312 [2018] ) is misplaced, as such case involved law enforcement's covert retrieval of GPS tracking data through an everyday and mass-used item – i.e., a cell phone – in contrast to a parole ankle monitor, which possesses only one purpose that is well-known to the wearer (see White v. United States, 363 A3d at 1176–1177;  United States v. Gaines, 2021 WL 4263375, *7, 21 U.S. Dist LEXIS 178378, *20–21).  Accordingly, Supreme Court properly denied defendant's motion to suppress.

Lastly, defendant asserts several contentions related to his sentence.  However, defendant's challenge to the mandatory persistent violent felony offender designation is unpreserved, as he did not contest that designation at the sentencing hearing (see People v. Terry, 240 AD3d at 1133).  Similarly unpreserved is defendant's contention that the special information is defective, as he did not raise such objection before the trial court (see People v. Gibson, 21 AD3d 577, 578 [3d Dept 2005] ).  However, although defendant also did not preserve his contention that his conviction of attempted murder in the second degree (count 2) is an inclusory concurrent count of attempted murder in the first degree (count 1), we find this contention to have merit;  count 2 is dismissed and the sentence imposed with regard to that count only is vacated (see People v. McDonald, 189 AD3d 2162, 2163 [4th Dept 2020], lv denied 36 NY3d 1099 [2021];  see also People v. Mayette, 233 AD3d 1097, 1101 [3d Dept 2024], lv denied 43 NY3d 945 [2025] ).³  Upon our review of defendant's history and circumstances of his present crimes, his failure to accept responsibility, the injuries sustained by the victims and the fact that these shootings occurred shortly after his release from prison and while subject to parole supervision with an ankle monitor, we cannot say that defendant's sentence is unduly harsh or severe (see People v. Lewis, 224 AD3d at 1155;  People v. Collier, 146 AD3d at 1152).  We decline defendant's invitation to reduce the sentence as a matter of discretion in the interest of justice (see CPL 470.15[6][b];  470.20[6] ).  We have examined defendant's remaining contentions and have found them to be lacking merit.

Reynolds Fitzgerald, J.P., McShan and Corcoran, JJ., concur.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating defendant's conviction of the crime of attempted murder in the second degree charged under count 2, vacating the sentence imposed thereon and dismissing that count;  and, as so modified, affirmed.

FOOTNOTES

1.   The video footage recovered by law enforcement in connection with the first shooting was of a particularly high quality, providing clear images of defendant's person and identifying characteristics of his vehicle.

2.   Although the video footage of the second shooting was not of the same high-definition quality as the footage from the first shooting, the footage was clear enough to identify the actions and general appearance of the participants on camera.

3.   There is no change to the overall term of incarceration because defendant was sentenced to a prison term of 25 years to life for each of count 1 and count 2, which were to run concurrently.

Fisher, J.