People v. Everson

215 N.Y.S.3d 819

229 A.D.3d 1349

The PEOPLE of the State of New York, Respondent,

v.James EVERSON, Defendant-Appellant.

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

Entered: July 26, 2024

Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), rendered July 15, 2021. The judgment convicted defendant upon a jury verdict of murder in the second degree and criminal possession of a weapon in the second degree (four counts).

KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DAVID D. BASSETT OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CURRAN, BANNISTER, DELCONTE, AND HANNAH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]) and four counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]) arising out of a drive-by shooting of the victim. We affirm.

[1] Defendant’s contention that County Court failed to conduct a sufficient inquiry into the People’s readiness as directed by CPL 30.30 (5) is not preserved for our review inasmuch as defendant did not object to the sufficiency of the inquiry (see People v. Hardy, 47 N.Y.2d 500, 505, 419 N.Y.S.2d 49, 392 N.E.2d 1233 [1979]; see generally People v. Wille, 224 A.D.3d 1329, 1330, 204 N.Y.S.3d 642 [4th Dept. 2024], lv denied 41 N.Y.3d 1005, 213 N.Y.S.3d 242, 236 N.E.3d 1260 [2024]).

[2–4] We reject defendant’s contention that the court erred in admitting evidence of prior violence between feuding groups of individuals who reside in the vicinity of the park where the shooting occurred, as well as evidence that defendant and his codofendant were affiliated with one of those groups. It is well settled that "[e]vidence regarding gang activity can be admitted to provide necessary background, or when it is inextricably interwoven’ with the charged crime[], or to explain the relationships of the individuals involved" (People v. Kims, 24 N.Y.3d 422, 438, 999 N.Y.S.2d 337, 24 N.E.3d 573 [2014]; see People v. Tatum, 204 A.D.3d 1400, 1402, 166 N.Y.S.3d 764 [4th Dept. 2022], lv denied 38 N.Y.3d 1074,171 N.Y.S.3d 439,191 N,E.3d 391 [2022]). Here, the testimony regarding defendant’s affiliation with cer- tain individuals provided necessary background information to explain the relationship of defendant to his codefendant and defendant’s motive for shooting from a moving car into a crowd of people in the park (see People v. Savery, 209 A.D.3d 1268, 1269, 175 N.Y.S.3d 801 [4th Dept. 2022], lv denied 39 N.Y.3d 1075, 183 N.Y.S.3d 781, 204 N.E.3d 417 [2023]), and we further conclude that the prejudicial effect of that testimony did not outweigh its probative value (see People v. Haygood, 201 A.D.3d 1363, 1364, 158 N.Y.S.3d 709 [4th Dept. 2022], lv denied 38 N.Y.3d 951, 165 N.Y.S.3d 474, 185 N.E.3d 995 [2022]).

[5, 6] We also reject defendant’s contention that the court erred in refusing to sever his trial from that of his codefendant. "The decision to grant or deny a separate trial is vested primarily in the sound judgment of the [t]rial [j]udge, and defendant[s] burden to demonstrate abuse of that discretion is a substantial one" (People v. Mahboubian, 74 N.Y.2d 174, 183, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989]). Moreover, "[j]oint trials are preferred where, as here, the same evidence will be used and the defendant and codefendant[ ] are charged with acting in concert …, and severance is not required solely because of hostility between the [defendants], differences in their trial strategies or inconsistencies in their defenses" (People v. Rideout, 177 A.D.3d 1377, 1378-1379, 112 N.Y.S.3d 843 [4th Dept. 2019], lv denied 35 N.Y.3d 973,125 N.Y.S.3d 14,148 N.E.3d 478 [2020] [internal quotation marks omitted]). Contrary to defendant’s contention, the codefendant’s counsel did not act as a second prosecutor because, although he emphasized the People’s evidence against defendant on summation, "[he] did not elicit any new evidence against the defendant that his jury would not otherwise have heard had he been granted a separate trial" (People v. Bostic, 217 A.D.3d 678, 680, 190 N.Y.S.3d 443 [2d Dept. 2023], lv denied 41 N.Y.3d 964, 208 N.Y.S.3d 524, 232 N.E.3d 202 [2024]; see People v. Osborne, 88 A.D.3d 1284, 1285, 930 N.Y.S.2d 367 [4th Dept. 2011], lv denied 19 N.Y.3d 999, 951 N.Y.S.2d 476, 975 N.E.2d 922 [2012], reconsideration denied 19 N.Y.3d 1104, 955 N.Y.S.2d 560, 979 N.E.2d 821 [2012]; cf. People v. Cardwell, 78 N.Y.2d 996, 998, 575 N.Y.S.2d 267, 580 N.E.2d 753 [1991]).

[7, 8] We also reject defendant’s contention that he was denied a fair trial by prosecutorial misconduct, including the prosecutor’s references to the musical West Side Story in her opening statement and the quality of the police investigation in her summation. The challenged comments were not so egregious as to deprive defendant of a fair trial (see People v. Melendez, 11 A.D.3d 983, 984, 782 N.Y.S.2d 893 [4th Dept. 2004], lv denied 4 N.Y.3d 888, 798 N.Y.S.2d 734, 831 N.E.2d 979 [2005]; People v. White, 291 A.D.2d 842, 843, 737 N.Y.S.2d 181 [4th Dept. 2002], lv denied 98 N.Y.2d 656, 745 N.Y.S.2d 515, 772 N.E.2d 618 [2002]) and, further, "the court alleviated any prejudice arising from the prosecutor’s comments and summation by instructing the jury that the comments and summations of the prosecutor and defense counsel do not constitute evidence" (People v. Williams, 28 A.D.3d 1059, 1061, 813 N.Y.S.2d 606 [4th Dept. 2006], aff’d 8 N.Y.3d 854, 831 N.Y.S.2d 367, 863 N.E.2d 588 [2007]).

Contrary to defendant’s contention, we conclude that the sentence is not unduly harsh or severe.

Finally, we have reviewed defendant’s remaining contentions and conclude that none warrants modification or reversal of the judgment.

All concur except Hannah, J., who dissents and votes to reverse in the following memorandum:

I respectfully dissent because I believe that severance was compelled in this case and thus that defendant is entitled to a new trial. Severance of criminal trials that could otherwise be joined is rooted in the fundamental concern that a defendant may be unduly prejudiced by a joint trial (see CPL 200.40 [1]). The determination whether to sever permissively joined trials requires, essentially, a balancing of judicial economy on the one hand and a defendant’s right to a fair trial on the other (see People v. Mahboubian, 74 N.Y.2d 174, 183, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989]). Although typically left to the discretion of the trial court, the Court of Appeals has "set forth a two-part test for determining whether severance is required," holding that "‘severance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant’s guilt’ " (People v. Cardwell, 78 N.Y.2d 996, 997-998, 575 N.Y.S.2d 267, 580 N.E.2d 753 [1991], quoting Mahboubian, 74 N.Y.2d at 184, 544 N.Y.S.2d 769, 543 N.E.2d 34).

The first part of that test is satisfied here. At trial, it was alleged by the prosecution that three individuals were riding in a vehicle, that two of those persons fired gunshots from the vehicle, and that the gunshots killed the victim. The third person in the vehicle (eyewitness) was called as a prosecution witness and accused defendant and his codefendant of being the two shooters. The core of defendant’s presentation to the jury was that he was not one of those two shooters because the prosecution had, his counsel argued on summation, failed to establish either that he was present in the vehicle or, even if present, that he was one of the two persons alleged to have fired from it. In stark contrast, the core of the codefendant’s presentation was, as explicitly synthesized during closing argument, that defendant was one of the two shooters, along with the eyewitness. One cannot both be and not be one of the shooters, and thus the core of each defense stood, axiomatically, in irreconcilable conflict. In one case defendant was not a shooter and may not have even been present, whereas in the other he was not only present but one of the two persons who shot at the victim. "This was more than complete disagreement on some factual detail, or even some peripheral aspect of the case … The defenses presented here were antagonistic at their crux" (Mahboubian, 74 N.Y.2d at 185-186, 544 N.Y.S.2d 769, 543 N.E.2d 34). The second part of the test, however, requires a deeper look into the circumstances of the case.

Here, the People most directly established defendant’s guilt through the testimony of the eyewitness who, if credited, established defendant’s identity as one of the shooters. Understandably then, discrediting the eyewitness became a central focus of defendant’s defense at every stage—through pretrial motions, cross-examination, trial motions, and closing argument. At each step, defendant attempted to establish that the eyewitness was not to be believed based on his history of bad acts; his evasiveness and untruthfulness when speaking to the police; and discrepancies in his various statements to the police, his testimony before the grand...