People v. White-Span

182 A.D.3d 909

122 N.Y.S.3d 818

The PEOPLE of the State of New York, Respondent,

v.Jovell WHITE–SPAN, Appellant.

107499

109912

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

Calendar Date: February 14, 2020

Decided and Entered: April 30, 2020

Matthew C. Hug, Albany, for appellant.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for appellant.

Before: Garry, P.J., Egan Jr., Mulvey, Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

Appeals (1) from a judgment of the County Court of Albany County (Lynch, J.), rendered January 21, 2015, upon a verdict convicting defendant of the crime of murder in the second degree, and (2) by permission, from an order of said court, entered November 15, 2017, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, after a hearing.

In April 2014, defendant and codefendant Jahmeek Croley were indicted on charges of murder in the second degree and conspiracy in the second degree in connection with a shooting on October 19, 2013 that resulted in the victim's death. Following a joint jury trial, defendant was convicted of murder in the second degree¹ and thereafter sentenced to a prison term of 25 years to life. In March 2017, defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction claiming, among other violations, that he was deprived of the effective assistance of counsel. County Court denied the majority of the motion and ordered a hearing only with respect to the ineffective assistance of counsel claim. After the hearing, the court denied the motion in its entirety, finding that defense counsel had offered strategic reasons for his actions. Defendant appeals from the judgment of conviction and, with permission, from the order denying his motion to vacate. We affirm.

Defendant challenges the validity of the indictment, contending that the conviction must be vacated and the indictment dismissed due to prejudicial testimony introduced before the grand jury. Although defendant moved, in his omnibus motion, for dismissal of the indictment on the basis that the evidence before the grand jury was legally insufficient, he failed to move to dismiss the indictment on the specific grounds he now raises. Accordingly, this argument is not preserved for our review (see People v. Gunney, 13 A.D.3d 980, 984, 787 N.Y.S.2d 483 [2004], lv denied 5 N.Y.3d 789, 801 N.Y.S.2d 810, 835 N.E.2d 670 [2005] ).

Defendant next contends that the jury verdict finding him guilty of second degree murder was not supported by legally sufficient evidence and was against the weight of the evidence. Initially, as defendant's motion for a trial order of dismissal at the close of the People's case "was not directed at the specific arguments he raises on appeal, [his] legal sufficiency claim is unpreserved" ( People v. Shackelton, 177 A.D.3d 1163, 1165, 115 N.Y.S.3d 488 [2019], lv denied 34 N.Y.3d 1162 [2020] ; see People v. Gray, 86 N.Y.2d 10, 19–20, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; People v. Youngs, 175 A.D.3d 1604, 1606, 110 N.Y.S.3d 73 [2019] ). Nevertheless, in reviewing whether "the verdict is against the weight of the evidence, this Court necessarily must ensure that the People proved each element of the crime beyond a reasonable doubt. In conducting such a review, where an acquittal would not have been unreasonable, we view the evidence in a neutral light and, while giving deference to the jury's credibility determinations, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Brinkley, 174 A.D.3d 1159, 1160–1161, 106 N.Y.S.3d 210 [2019] [internal quotations marks and citations omitted], lv denied 34 N.Y.3d 979 [2019] ; see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; People v. Hilton, 166 A.D.3d 1316, 1318, 87 N.Y.S.3d 399 [2018], lv denied 32 N.Y.3d 1205 [2019] ). As relevant 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 or of a third person" ( Penal Law § 125.25[1] ). "[T]he intent to kill may be inferred from the surrounding circumstances and a defendant's actions" ( People v. Reese, 166 A.D.3d 1057, 1058, 87 N.Y.S.3d 711 [2018] [internal quotation marks and citations omitted], lv denied 33 N.Y.3d 953 [2019] ; see People v. Conway, 179 A.D.3d 1218, 1219, 116 N.Y.S.3d 118 [2020] ).

Defendant's conviction was based entirely on circumstantial evidence, as no murder weapon was found, there were no eyewitnesses to the shooting and no evidence regarding a motive for the killing was offered by the People. The People's case primarily relied upon video surveillance, testimony from witnesses who were in the area when the shooting occurred, cell phone records and the autopsy report, which established that the victim sustained three gunshot wounds, including a fatal wound to his head.

Christopher Cornell, a detective assigned to investigate this shooting, reviewed the surveillance videos captured from outside of Willie's Sports Bar on Washington Avenue in the City of Albany (hereinafter the bar) and from outside a nearby Stewart's shop. The bar video depicts a person who appears to be the victim entering the bar shortly after 2:00 a.m. and, approximately five minutes later, a person later identified as Croley entered the bar and then exited after only three minutes and walked away. Cornell testified that surveillance video from outside the Stewart's shop depicts Croley pulling his vehicle into the Stewart's parking lot at approximately 2:37 a.m., with a passenger, later identified as defendant. Both Croley and defendant are seen exiting the vehicle, after which defendant immediately pulls his hood up and quickly walks away from the vehicle with Croley following him. Defendant was wearing a blue hooded U.S. Polo sweatshirt, bearing the letters "USA" in gold or yellow with a big pony symbol on the chest, and "very distinct" black and yellow Nike Foamposit sneakers. Cornell explained that he was able to later identify the passenger as defendant through a Facebook photograph showing defendant wearing the exact outfit, including the distinctive sneakers that he was wearing on the morning of the shooting. The video from the bar shows Croley reentering the bar at approximately 2:39 a.m. after being frisked by the bouncer, and Cornell testified that he was able to locate defendant on a surveillance video outside of the bar making "several passes back and forth" without entering the bar. The video shows that defendant was pacing and standing on the sidewalk in front of the bar between approximately 2:42 a.m. and 2:46 a.m. The victim is seen exiting the bar with another person at 3:05 a.m. and, one minute later, defendant is observed walking past the bar following in the same direction as the victim. The shooting occurred at approximately 3:08 a.m.

Timothy Pfeiffenberger, a bouncer at another establishment in the vicinity of the bar, testified that he was standing on the corner of North Lake Avenue and Washington Avenue at approximately 3:15 a.m. or so and heard gunshots. He then went to the corner and "immediately saw [defendant, who he identified at trial,] jogging from the intersection of Cortland [Place] and Washington [Avenue] toward [his] direction, ... running in front of some traffic, in between some cars." He recounted that defendant "[p]assed directly by [him], about two feet away from [him]" and described him as an "African–American male," with "dreadlocks about four to six inches long, about [5 feet 8 inches, wearing] a blue hoodie ... with gold USA across the front of it." According to Pfeiffenberger, defendant was "running, had [the] hoody up but it was bouncing on and off. Pulling [his] pants up. Just seemed to be fleeing the scene." Pfeiffenberger could not see if there was anything in defendant's hand.

Huie Courtney testified that, on the morning of the shooting, at approximately 3:00 a.m. as he turned onto Washington Avenue, he heard five gunshots coming from the direction of Cortland Place where, it was later discovered, the victim was shot. After hearing the gunshots, Courtney saw a "short black male with shoulder-length dreads" wearing dark clothing with lettering on his shirt walking toward him from across the street. Courtney testified that this individual, now known as defendant, "[took] his hood off and ... a skull cap or a do-rag fell off." Courtney described that defendant walked fast, "with his hands in his hoody" and "took off" after turning the corner. According to Courtney, after turning the corner, defendant moved "like he was just trying to get away from the scene." Courtney did not observe that defendant was carrying a gun.

Donald Columbus, a friend of the victim, testified that, in the early morning hours of October 19, 2013, he was with the victim and Donovan Johnson at a party at the YMCA. After leaving the party, they drove in Columbus' white Infinity, parked on Cortland Place and went into the bar. After about 30 minutes, Columbus and the victim left the bar and saw the victim's cousin, Jamil Jordan, on Washington Avenue. The victim started talking to Jordan on the corner, and Columbus went to his car, which was located four or five car lengths from the corner where the victim and Jordan were talking. Upon hearing gunshots, Columbus ran away and, in the process, lost his gold chain, which was subsequently recovered in the vicinity of where his car was parked and the shell casings were recovered. Columbus did not see anyone with a gun, did not see the victim get into a fight with anyone or get shot and, after they left the bar, did not see anyone following them. Columbus testified that after the gunfire ended, he returned to Cortland Place and saw Jordan and Josh Otero putting the victim into Otero's car to go to the hospital....