People v. Moore

204 N.Y.S.3d 285

223 A.D.3d 1085

The PEOPLE of the State of New York, Respondent,

v.Kyshaan MOORE, Appellant.

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

Calendar Date: November 13, 2023

Decided and Entered: January 25, 2024

Paul J. Connolly, Delmar, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Lynch, J.P., Clark, Ceresia, Fisher and Mackey, JJ.

MEMORANDUM AND ORDER

Mackey, J.

Appeals (1) from a judgment of the County Court of Schenectady County (Matthew J. Sypniewski, J.), rendered July 30, 2018, upon a verdict convicting defendant of the crimes of murder in the second degree, conspiracy in the second degree and criminal possession of a weapon in the second degree (two counts), and (2) by permission, from an order of said court, entered November 21, 2022, which denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

On the morning of November 19, 2016, Charles Dembrosky (hereinafter the victim) was found dead outside his apartment from an apparent gunshot wound to his neck. The police soon learned that codefendant Tarchand Lall had been with the victim on the night that he was killed and they promptly interviewed him. Later, it was discovered that Lall was the sole beneficiary on a $150,000 life insurance policy that he had recently taken out on the victim. The victim’s cell phone, which was recovered from the scene, revealed that the last three phone calls he had received on the night of his death were from (484) 447-XXXX, a number that was later linked to codefendant Joevany Luna (hereinafter the codefendant). Following an extensive investigation, defendant, Lall and the codefendant were arrested and jointly indicted, as is relevant here, for the crimes of murder in the first degree, conspiracy in the second degree and two counts of criminal possession of a weapon in the second degree as part of a murder-for-hire scheme. Broadly stated, the People theorized that Lall hired the codefendant to kill the victim in order to collect the proceeds from the victim’s life insurance and defendant acted in concert with the codefendant to carry out the plan. Following a 13–day joint jury trial with the codefendant, defendant was acquitted of murder in the first degree but convicted of murder in the second degree, conspiracy in the second degree and two counts of criminal possession of a weapon in the second degree.¹ He was subsequently sentenced, as a second felony offender, to a prison term of 25 years to life for his conviction of murder in the second degree, a concurrent prison term of 12½ to 25 years for his conviction of conspiracy in the second degree and prison terms of 15 years, to be followed by five years of postrelease supervision, for each count of criminal possession of a weapon. The court directed that the sentences on the two counts of criminal possession of a weapon run concurrent to one another, but consecutive to the murder sentence. Thereafter, defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction based on the ground of ineffective assistance of counsel, which County Court denied without a hearing. Defendant appeals from the judgment of conviction and, by permission, from the denial of his CPL 440.10 motion.

[1–6] Initially, defendant argues that the jury verdict is not supported by legally sufficient evidence and is also against the weight of the evidence.² "In conducting a legal sufficiency analysis, this Court views the evidence in the light most favorable to the People and evaluates whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" (People v. Warner, 194 A.D.3d 1098, 1099, 147 N.Y.S.3d 234 [3d Dept. 2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 1030, 153 N.Y.S.3d 412, 175 N.E.3d 438 [2021]; see People v. Agan, 207 A.D.3d 861, 862, 172 N.Y.S.3d 177 [3d Dept. 2022], lvs denied 38 N.Y.3d 1186, 176 N.Y.S.3d 213, 197 N.E.3d 493 [2022], 39 N.Y.3d 939, 177 N.Y.S.3d 542, 198 N.E.3d 785 [2022]). "When undertaking a weight of the evidence review, [this Court] must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and, if not, then [it must] 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. When conducting this review, [this Court] consider[s] the evidence in a neutral light and defer[s] to the jury’s credibility assessments" (People v. Terry, 196 A.D.3d 840, 841, 149 N.Y.S.3d 705 [3d Dept. 2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 1030, 153 N.Y.S.3d 432, 175 N.E.3d 457 [2021]). "Notably, we do not distinguish between direct or circumstantial evidence in conducting a legal sufficiency and/or weight of the evidence review" (People v. Truitt, 213 A.D.3d 1145, 1147, 184 N.Y.S.3d 441 [3d Dept. 2023] [internal quotation marks and citations omitted], lv denied 39 N.Y.3d 1144, 188 N.Y.S.3d 455, 209 N.E.3d 1281 [2023]; see People v. Rivera, 212 A.D.3d 942, 944, 181 N.Y.S.3d 387 [3d Dept. 2023], lv denied 39 N.Y.3d 1113, 186 N.Y.S.3d 841, 208 N.E.3d 70 [2023]).

As charged here, 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]). Murder in the second degree is a class A–1 felony (see Penal Law § 125.25). "A person is guilty of conspiracy in the second degree when, with intent that conduct constituting a class A felony be performed, he [or she] agrees with one or more persons to engage in or cause the performance of such conduct" (Penal Law § 105.15). As relevant to count 3 of the indictment, "[a] person is guilty of criminal possession of a weapon in the second degree when … with intent to use the same unlawfully against another, such person … possesses a loaded firearm" (Penal Law § 265.03[1][b]). With respect to count 4, "[a] person is guilty of criminal possession of a weapon in the second degree when … such person possesses any loaded firearm" outside of their home or place of business (Penal Law § 265.03[3]).

At trial, the People’s case primarily relied upon cell phone records, video surveillance, audio recordings, witness testimony and the autopsy report, which established that the victim sustained a fatal gunshot wound to his neck. The evidence showed that on November 19, 2016, at approximately 7:00 a.m., the victim’s roommate found the victim’s body lying outside their apartment in the City of Schenectady. He and the victim had gone to a party together the night before, but the roommate left the party early and slept at his mother’s house. After leaving the party, the roommate called the victim, who told him that Lall would drive him home. Lall was a local contractor who occasionally employed both the victim and the roommate for light construction and remodeling work. When the roommate returned to their apartment the following morning, he discovered the victim’s body and immediately asked the upstairs neighbor to call 911. The upstairs neighbor testified that at 9:00 or 10:00 p.m. on the night of the murder, the victim had visited his apartment to use his phone, stating that he had forgotten his phone in Lall’s van when he was dropped off. About 30 minutes later, Lall returned the victim’s phone, after which the upstairs neighbor and the victim spoke for another 30 minutes, then both returned to their respective apartments. Between 1:00 and 1:30 a.m. on November 19, 2016, while watching television in his apartment, a neighbor who resided two or three houses away from the victim’s apartment heard a gunshot-like sound. Another witness living about¼ block from the victim’s apartment testified that she was awakened by a loud gunshot-like sound at about 1:28 a.m. Paramedics and firefighters with the City of Schenectady Fire Department responded to the scene and found the victim lying on his back with a fatal gunshot wound to his neck. Law enforcement from the City of Schenectady Police Department canvassed the area for physical evidence and found a shell casing from a semiautomatic weapon near the victim’s body and the victim’s cell phone in his pocket.³ Data extracted from the victim’s phone revealed that between 12:57 and 1:22 a.m. on the night of the murder, the victim received three calls from cell phone number (484) 447–XXXX. No contact name was associated with that number in the victim’s phone. Investigating officers suspected that the owner of that phone might have lured the victim outside with the intention of shooting him.

On the day of the shooting, Lall was interviewed by law enforcement and agreed to allow the police to download the contents of his phone, and a cell phone extraction report was created. That report revealed that Lall had also received a call from the (484) 447–XXXX phone, on October 29, 2016. The report further revealed text messages from Lall to an insurance agent from Primerica Financial Services, asking if a life insurance policy for "Chuck" was still in effect. A Primerica Financial Services employee later confirmed at trial that, in May 2016, Lall had taken out a $150,000 life insurance policy on the victim, naming himself as the sole beneficiary.⁴ The insurance agent who had issued the policy testified that in the months leading up to the victim’s death, Lall contacted him several times to ask if the policy was "still in force." He testified that Lall last contacted him on November 21, 2016 to report that the victim had died and that he wanted to collect the benefit....