People v. Meadows

180 A.D.3d 1244

118 N.Y.S.3d 803

The PEOPLE of the State of New York, Respondent,

v.Kimani J. MEADOWS, Appellant.

109943

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

Calendar Date: January 8, 2020

Decided and Entered: February 27, 2020

Mark A. Diamond, Albany, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Jordan J. Yorke of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Clark, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Aarons, J. Appeal from a judgment of the County Court of Chemung County (Baker, J.), rendered October 30, 2017, upon a verdict convicting defendant of the crimes of attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree (three counts) and criminal use of a firearm in the first degree.

On December 20, 2016, defendant entered the apartment of the victim and shot him multiple times with a gun. Surveillance video outside of the victim's apartment building showed defendant exiting the building and driving away in a vehicle, which was ultimately discovered to be registered to him. The next day, defendant was stopped while driving his vehicle and, upon a search of the vehicle, a backpack was discovered with a gun therein. Defendant was subsequently charged with attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree (three counts) and criminal use of a firearm in the first degree. Prior to trial, defendant moved to suppress, among other things, the statements he gave to law enforcement officials. A suppression hearing was held, after which County Court denied his motion. Following a jury trial, defendant was convicted as charged. Defendant was sentenced to concurrent prison terms, the greatest of which was 23 years, followed by five years of postrelease supervision. Defendant appeals. We affirm.

Defendant initially argues that venue of the trial in Chemung County was improper. Defendant, however, waived any objection as to improper venue (see generally People v. Greenberg, 89 N.Y.2d 553, 556, 656 N.Y.S.2d 192, 678 N.E.2d 878 [1997] ). Even if not waived, the People established by a preponderance of the evidence that the alleged crimes occurred in Chemung County (see People v. Groom, 188 A.D.2d 674, 675, 591 N.Y.S.2d 535 [1992] ).

Defendant also contends that County Court should have granted his suppression motion because he was impermissibly questioned by law enforcement after invoking his right to counsel and to remain silent. We disagree. Upon an unequivocal request for counsel, all questioning by law enforcement must cease (see People v. Slocum, 133 A.D.3d 972, 974, 20 N.Y.S.3d 440 [2015], appeal dismissed 29 N.Y.3d 954, 51 N.Y.S.3d 485, 73 N.E.3d 841 [2017] ). "Whether a particular request is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request[,] including the defendant's demeanor, manner of expression and the particular words found to have been used by the defendant" ( People v. Glover, 87 N.Y.2d 838, 839, 637 N.Y.S.2d 683, 661 N.E.2d 155 [1995] ). At the suppression hearing, one of the officers testified that, in response to questioning, defendant stated, "I don't know what you're talking about, so if you want to ask me questions, then I could get a lawyer and stuff." The officer also stated that he viewed this comment as a hypothetical request for counsel. In addition, after making this comment, defendant did not make any further statement indicating that he wanted counsel. In our view, defendant's isolated statement of "I could get a lawyer" did not constitute an unequivocal request for counsel. Given this, and viewing the suppression hearing evidence in its entirety, we conclude that the court correctly concluded that defendant did not unequivocally invoke his right to counsel (see People v. Fridman, 71 N.Y.2d 845, 846, 527 N.Y.S.2d 737, 522 N.E.2d 1035 [1988] ; People v. Engelhardt, 94 A.D.3d 1238, 1241, 941 N.Y.S.2d 808 [2012], lv denied 19 N.Y.3d 960, 950 N.Y.S.2d 112, 973 N.E.2d 210 [2012] ; compare People v. Jemmott, 116 A.D.3d 1244, 1247, 984 N.Y.S.2d 443 [2014] ).

Defendant assails the verdict as not being supported by legally sufficient evidence. This argument, however, is unpreserved because the error claimed on appeal is not the error that was raised in defendant's trial motion to dismiss (see People v. Ackerman, 173 A.D.3d 1346, 1348, 104 N.Y.S.3d 733 [2019], lv denied 34 N.Y.3d 949, 110 N.Y.S.3d 623, 134 N.E.3d 622 [2019] ; People v. Cruz, 131 A.D.3d 724, 724, 14 N.Y.S.3d 804 [2015], lv denied 26 N.Y.3d 1087, 23 N.Y.S.3d 644, 44 N.E.3d 942 [2015] ). Notwithstanding the foregoing, because defendant also argues that the verdict was against the weight of the evidence, a claim not subject to a preservation requirement, we review the evidence adduced regarding each element of the charged crimes (see People v. Hilton, 166 A.D.3d 1316, 1317–1318, 87 N.Y.S.3d 399 [2018], lv denied 32 N.Y.3d 1205, 99 N.Y.S.3d 248, 122 N.E.3d 1160 [2019] ; People v. Gabriel, 155 A.D.3d 1438, 1439, 66 N.Y.S.3d 359 [2017], lv denied 31 N.Y.3d 1081, 79 N.Y.S.3d 103, 103 N.E.3d 1250 [2018] ). "Where, as here, a different outcome would not have been unreasonable, we weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions" ( People v. Ash, 162 A.D.3d 1318, 1318–1319, 80 N.Y.S.3d 495 [2018] [internal quotation marks and citations omitted], lv denied 32 N.Y.3d 1002, 86 N.Y.S.3d 760, 111 N.E.3d 1116 [2018] ).

The victim testified at trial that, on December 20, 2016, he was at his apartment when defendant and one of defendant's former coworkers stopped by. Shortly thereafter, another individual came to the apartment. Defendant closed the door when the individual entered and the coworker checked the individual's pockets and took his phone. The victim testified that defendant then pulled out a gun. Defendant also unlocked the cylinder of the gun and showed the bullets to everyone in the room. The individual was ultimately given back his phone and was told he could leave, which the individual did. According to the victim, defendant complained that the victim had sold him defective bootleg movies. The victim testified that defendant's coworker then left the apartment, after which defendant pointed the gun at him and told him to go into his living room. Defendant then shot the victim in the leg, groin and arm.¹ As a consequence of the gunshots, the victim was in a coma for three days, underwent surgery and was hospitalized for almost two months. Surveillance video depicting the area outside the victim's apartment building showed defendant and his coworker driving away in a vehicle.

An investigator with the City of Elmira Police Department testified that he became aware that the vehicle was registered to defendant, and he conducted surveillance by defendant's residence on December 21, 2016. An officer with the same police department, who assisted with the surveillance, testified that, after defendant left his residence and drove away, he stopped him at a gas station. The officer observed marihuana in the front seat, detained defendant and subsequently transported him to the police department. A forensic identifier with the State Police testified that, on December 21, 2016, he searched the vehicle and found a loaded gun, which was in a backpack. DNA testing revealed that defendant was a significant contributor to the DNA found on the gun in the backpack.

Given that the record demonstrates that defendant was angry at the victim for selling allegedly defective DVDs and shot the victim multiple times with a gun, causing the victim serious physical injuries, we conclude, viewing the evidence in a neutral light, that the verdict convicting defendant of attempted murder in the second degree and assault in the first degree was not against the weight of the evidence (see People v. Collier, 146 A.D.3d 1146, 1150–1151, 46 N.Y.S.3d 276 [2017], lv denied 30 N.Y.3d 948, 67 N.Y.S.3d 131, 89 N.E.3d 521 [2017] ; People v. Mathews, 134 A.D.3d 1248, 1249–1250, 21 N.Y.S.3d 465 [2015] ; People v. Mullings, 23 A.D.3d 756, 758, 803 N.Y.S.2d 784 [2005], lvs denied 6 N.Y.3d 756, 759, 810 N.Y.S.2d 424, 427, 843 N.E.2d 1164, 1167 [2005]; People v. Rivers, 17 A.D.3d 934, 936, 793 N.Y.S.2d 627 [2005], lv denied 5 N.Y.3d 768, 801 N.Y.S.2d 262, 834 N.E.2d 1272 [2005] ). Nor do we agree with defendant's weight of the evidence claim regarding the charges of criminal use of a firearm in the first degree and criminal possession of weapon in the second degree (counts 3 and 4 of the indictment) – all of which are related to the incident at the victim's apartment on December 20, 2016. In this regard, the record discloses that defendant, while outside of his home or place of business, possessed a gun that he used to shoot the victim (see People v. Stover, 178 A.D.3d 1138, 1139, 115 N.Y.S.3d 500 [2019] ; People v. Speed, 134 A.D.3d 1235, 1236, 21 N.Y.S.3d 459 [2015], lv denied 27 N.Y.3d 1155, 39 N.Y.S.3d 389, 62 N.E.3d 129 [2016] ; People v. Knox, 80 A.D.3d 887, 888–889, 915 N.Y.S.2d 673 [2011], lv denied 16 N.Y.3d 860, 923 N.Y.S.2d 422, 947 N.E.2d 1201 [2011] ).

We reach a similar conclusion with respect to the verdict convicting defendant of criminal possession of weapon in the second degree under count 6 of the indictment, which pertains to the loaded gun found in the backpack on December 21, 2016 (see People v. Smith, 173 A.D.3d 1441, 1443–1444, 103 N.Y.S.3d 685 [2019], lvs denied 34 N.Y.3d 951, 954, 110 N.Y.S.3d 631, 134 N.E.3d 630 [2019]; People v. Linares, 167 A.D.3d 1067, 1070, 89 N.Y.S.3d 454 [2018], lv denied 33 N.Y.3d 950, 100 N.Y.S.3d 152, 123 N.E.3d 811 [2019] ). Contrary to defendant's claim, the People were not required to prove that the gun discovered in his vehicle was the same gun used to...