People v. Lee

183 A.D.3d 1183

124 N.Y.S.3d 479

The PEOPLE of the State of New York, Respondent,

v.Andre D. LEE, Appellant.

109301

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

Decided and Entered: May 28, 2020

Calendar Date: March 26, 2020

Catherine A. Barber, Guilderland, for appellant.

Palmer J. Pelella, Special Prosecutor, Owego, for respondent.

Before: Garry, P.J., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

Appeal from a judgment of the County Court of Broome County (Cawley Jr., J)., rendered February 21, 2017, upon a verdict convicting defendant of the crimes of murder in the second degree, assault in the second degree, criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the third degree.

On July 4, 2014, defendant hit Seth West in the head with a liquor bottle and, shortly thereafter, shot Scott Wright in the abdomen, causing Wright's death. He was charged with murder in the second degree, assault in the second degree, criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the third degree. Following a jury trial, he was convicted as charged and sentenced to consecutive prison terms of 25 years to life on the murder conviction and two years on the assault conviction, followed by three years of postrelease supervision, and to lesser concurrent terms on the remaining convictions. Defendant appeals.

Defendant contends that the evidence was legally insufficient to establish his intent to cause Wright's death as an element of his conviction for murder in the second degree, and his intent to use a firearm unlawfully against Wright as an element of his conviction for criminal possession of a weapon in the second degree. He further contends that his convictions on these counts are against the weight of the evidence because the People did not establish that he intended to shoot Wright and did not prove that defendant's weapon did not discharge accidentally.

The People's witnesses included numerous individuals who attended a community Independence Day celebration in the parking lot of an apartment complex in the City of Binghamton, Broome County. Their testimony established that the party was uneventful until defendant and several acquaintances began teasing one another, in what was initially a good-natured way, about T-shirts that defendant and others were wearing. However, the tone of the encounter changed when West, whom defendant did not know, joined in the teasing. Defendant, who had been drinking throughout the party from a liquor bottle that he was carrying, took offense at something West said. The two argued and defendant told West to leave, but West refused to do so. A few minutes later, while West was watching fireworks, defendant struck West in the side of the head with the liquor bottle, which broke, partially severing West's ear. West and defendant then had a fistfight. Other attendees separated them, and West and several other guests went into a nearby apartment to tend to West's ear.¹ Defendant left the party saying, according to some witnesses, that he would be back.

A few minutes later, defendant returned, wearing a different shirt. He asked a group of partygoers – who included Brian Alexander, Alexander's sister and Wright's sister – whether anyone "ha[d] a problem with what just happened." Alexander responded that he did have a problem with it. Defendant then pulled a gun out of his pants, cocked it and pointed it steadily at Alexander. According to several witnesses, defendant then told Alexander that he would not shoot him, since they were friends; one witness said that defendant said that Alexander's sister was "lucky [defendant] liked [her] brother." Some witnesses testified that they were not afraid because they did not think defendant would shoot anyone, while other witnesses ran away or hid behind nearby cars. After defendant told Alexander that he would not shoot him, Alexander went into the nearby apartment where West had gone.

When Wright, who was inside the apartment, learned that defendant was displaying a gun, he became concerned about his sister and went outside to check on her.² Defendant was standing near the outer door, at the bottom of a short flight of steps. After Wright stepped outside, defendant shot him, striking him in the abdomen. There was conflict in the testimony as to the exact sequence of events. Witnesses agreed that Wright had nothing in his hands, was not moving fast and had not yet started down the steps when defendant shot him. However, some guests said that defendant acted almost immediately and that neither he nor Wright spoke, while others said that the two appeared to have a brief conversation, although these witnesses could not hear what was said. Two witnesses said that defendant said, "What?" to Wright just before shooting him. One witness said that defendant said, "So you want to be the tough one," pointed the gun at Wright, cocked it and shot him. Another witness said that defendant turned to Wright as he came out the door and said, "Oh, you want to be the tough guy," that Wright said, "Wait, what?" and that defendant then pulled something out of his pocket, whereupon this witness heard a "big boom" and Wright fell to the ground. This witness said that defendant then said, "See, I told you," before turning around and walking away. Defendant then left the scene; Wright died in the hospital three days later.

A friend of defendant's girlfriend testified that she saw defendant at the girlfriend's house later that evening, mumbling, pacing back and forth and seeming to be upset. At defendant's request, the friend drove defendant to his mother's house nearby, but when defendant saw police cars around the mother's home, he asked the friend to take him back to the girlfriend's home, which she did.

The next morning, police officers searched the girlfriend's home and found defendant hiding in the attic. A search of his mother's home disclosed ammunition in a closet. During an interview with police, defendant acknowledged that he had struck West with the bottle and had argued with Alexander, but initially denied having any involvement with a gun, claiming only that he had heard a gunshot. After several hours, police allowed defendant to speak with his girlfriend. Thereafter, he admitted that he had shot Wright, but claimed that he had not intended to do so, that he returned to the party and displayed the gun only because he wanted a chance for a fair fight, and that the gun discharged accidentally. Defendant directed police to a wooded area where he had hidden the loaded gun and the clothing that he had worn to the party. The gun was test-fired and proved to be operable. Defendant's grand jury testimony was read into evidence at the trial, in which he testified, among other things, that he believed that Alexander had gone into the apartment to summon someone else to fight with him, and repeated his claim that the shooting was accidental.

Following the close of the People's proof, defendant's mother testified on defendant's behalf, saying that defendant had come to her house after she went to bed that evening and that he had gone to a hallway closet where he kept some belongings, changed his shirt and shoes and had then gone out again. She stated that she knew that defendant had a gun and had directed him to remove it from her house, but that she did not know that there was ammunition in the closet.

Defendant testified that he had drunk a third of a bottle of liquor by the early afternoon of the day of the shooting, that he continued to drink heavily throughout the party and that he also smoked synthetic marihuana. He acknowledged that he became angry when West "mock[ed]" him and that he struck West with the liquor bottle. He said that he was angry that other guests did not try to break up the fight when West was winning, but did break it up when defendant was winning, and that he believed that he had been prevented from having a "fair fight" with West. Defendant denied that he had gone to his mother's house to get his gun, claiming that he had been carrying the gun in his pants pocket throughout the day. He stated that he went to his mother's house to change his shirt and shoes, because his shirt had been torn during the fight and he did not want his good sneakers to be damaged. Defendant said that he had no intention of shooting anyone when he returned to the party, claiming that he waved the gun around because he wanted someone to give him another opportunity to fight. He stated that he and Wright did not exchange any words after Wright emerged from the door, that defendant did not intend to shoot Wright and that "the gun went off" unexpectedly in his hand.

Defendant claimed that he was "[n]ot too familiar" with guns, that he had bought the gun a few weeks before for self-protection after giving information to the prosecution in an unrelated murder case, and that he had fired it only once before, aiming into the air when he was "drunk" and "acting stupid." However, he acknowledged that he was familiar with how the trigger and the safeties worked, that he knew the gun was loaded, that he had cocked the gun, putting a live round into it, and that his finger was on the trigger when the gun discharged.

Viewing this evidence in the light most favorable to the People, and given that intent may be inferred from a defendant's actions (see People v. Stover, 178 A.D.3d 1138, 1143, 115 N.Y.S.3d 500 [2019], lv denied 34 N.Y.3d 1163, 120 N.Y.S.3d 249, 142 N.E.3d 1151 [2020] ), we find that there is a valid line of reasoning and permissible inferences from which a rational jury could conclude that defendant possessed the requisite intent to shoot and kill Wright and to use the gun unlawfully (see Penal Law §§ 125.25[1] ; 265.03[1][b]; People v. Stover, 178 A.D.3d at 1143, 115 N.Y.S.3d 500 ; People v. Reese, 166 A.D.3d 1057, 1060, 87...