People v. Deverow

180 A.D.3d 1064

118 N.Y.S.3d 677

The PEOPLE, etc., Respondent,

v.Dashawn DEVEROW, Appellant.

2016–11635

Ind. No. 27/13

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 29, 2019

February 26, 2020

Paul Skip Laisure, New York, N.Y. (Caitlin Halpern and Alice R.B. Cullina of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Nancy Fitzpatrick Talcott of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gregory L. Lasak, J.), rendered October 3, 2016, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and sentencing him to an indeterminate term of imprisonment of 23 years to life on the conviction of murder in the second degree and a determinate term of imprisonment of 15 years plus 5 years of postrelease supervision on the conviction of criminal possession of a weapon in the second degree, the sentences to run concurrently.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed on the conviction of murder in the second degree from an indeterminate term of imprisonment of 23 years to life to an indeterminate term of imprisonment of 17 years to life; as so modified, the judgment is affirmed.

The defendant was convicted of murder in the second degree and criminal possession of a weapon in the second degree in connection with a shooting that occurred on December 29, 2012, at approximately 12:30 a.m., in front of an apartment building located in Queens, resulting in the death of a 17–year–old male. Following his arrest and after waiving his Miranda rights (see Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ), the defendant provided a written statement to the police in which he admitted that he was armed with a "long-nose revolver" when he arrived at the scene of the shooting and that he had fired three shots in the direction of a group of men known as the "40 Boys," but claimed that those men had fired the first shots at him and his friend. At the time of the shooting, the defendant was accompanied by codefendant Jamane Yarbrough, who it was determined had fired the fatal shot.

The defendant contends that the verdict of guilt and the rejection of his justification defense were against the weight of the evidence. 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, 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 jury's verdict rejecting the defendant's justification defense and finding him guilty 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 ).

There is no merit to the defendant's contention that certain of the Supreme Court's evidentiary rulings violated his right to present a defense. "[W]hile all relevant evidence is admissible unless its admission violates some exclusionary rule, evidence is relevant only if it tends to prove the existence or nonexistence of a material fact directly at issue in the case" ( People v. Robinson , 143 A.D.3d 744, 746, 38 N.Y.S.3d 601 ; see People v. Jin Cheng Lin , 26 N.Y.3d 701, 727, 27 N.Y.S.3d 439, 47 N.E.3d 718 ). Further, " ‘well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury’ " ( People v. Powell , 27 N.Y.3d 523, 530, 35 N.Y.S.3d 675, 55 N.E.3d 435, quoting Holmes v. South Carolina , 547 U.S. 319, 326, 126 S.Ct. 1727, 164 L.Ed.2d 503 ). Here, although the defendant contends that the court should have admitted the results of certain DNA testing performed on a firearm that was purportedly used in connection with a "retaliation shooting," that evidence was not relevant, as it did not tend to prove the existence or nonexistence of a material fact directly at issue in this case, and any probative value was outweighed by the possible prejudicial impact on the jury. The defendant also argues that the court should have admitted into evidence recordings of three calls made to the 911 emergency number. However, that evidence similarly was not relevant to the defendant's justification defense. Further, on cross-examination, defense counsel was permitted to elicit testimony from one of the callers demonstrating that certain portions of her trial testimony were inconsistent with information conveyed by her during the 911 call.

We agree with the defendant, however, that the Supreme Court should not have admitted into evidence a revolver that was recovered by the police from underneath a vehicle five to seven blocks away from the scene of the crime and approximately seven hours after the shooting. The revolver was discovered by a passerby, who notified the police. "When real evidence is purported to be the actual object associated with a crime, the proof of accuracy has two elements. The offering party must establish, first, that the evidence is identical to that involved in the crime; and, second, that it has not been tampered with" ( People v. Julian , 41 N.Y.2d 340, 342–343, 392 N.Y.S.2d 610, 360 N.E.2d 1310 ). At trial, the only eyewitness at the scene of the shooting who observed the defendant armed with a firearm testified that the defendant was armed with a "[s]ilver, long barrel" revolver. Contrary to the court's determination, although that testimony was somewhat consistent with the defendant's description of his revolver, it was insufficient to provide reasonable assurances that the revolver that was admitted into evidence was the same revolver used by the defendant during the shooting (cf. People v. Davidson , 111 A.D.3d 848, 975 N.Y.S.2d 128 ). No forensic evidence was recovered from the subject revolver linking it to the defendant, and more significantly, the eyewitness was never asked, either by the police after the revolver was recovered or by the prosecution at trial, to identify the revolver as the "actual object" used by the defendant during the shooting ( People v. Julian , 41 N.Y.2d at 342, 392 N.Y.S.2d 610, 360 N.E.2d 1310 ; cf. People v. Flanigan , 174 N.Y. 356, 368, 66 N.E. 988 ; People v. Roblee , 83 A.D.3d 1126, 1127, 920 N.Y.S.2d 467 ; People v. Ortiz , 80 A.D.3d 628, 630, 914 N.Y.S.2d 281 ; People v. Howard , 305 A.D.2d 869, 870–871, 761 N.Y.S.2d 115 )....