THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v WILLIAM BELLAMY, Also Known as WILL, Appellant.
Supreme Court, Appellate Division, Third Department, New York
February 16, 2006
809 N.Y.S.2d 287
In May 2002, a gunfight erupted in the vicinity of Second Street and Quail Street in the City of Albany. Some two dozen shots were reportedly fired from four separate weapons resulting in two victims receiving nonfatal gunshot wounds. The ensuing investigation of the incident eventually led to defendant being indicted in July 2002 on charges of attempted murder in the second degree (two counts), assault in the second degree (two counts), reckless endangerment in the first degree (two counts) and criminal possession of a weapon in the second degree (two counts). Following a jury trial, defendant was convicted of two counts of criminal possession of a weapon in the second degree and two counts of reckless endangerment in the first degree. He was sentenced, as a second felony offender, to a prison term of 3 1/2 to 7 years on each of the reckless endangerment counts and 15 years on each of the criminal possession of a weapon counts, all to run concurrently. Defendant appeals.
Initially, we address defendant‘s contention that the verdict was against the weight of the evidence. Where, as here, an alternative verdict would not have been unreasonable, we must “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v Bleakley, 69 NY2d 490, 495 [1987]; see People v Davis, 21 AD3d 590, 592 [2005]). Although no one testified to seeing defendant possess or fire a gun on the subject night, several witnesses placed him in the immediate vicinity at the relevant time. There was evidence of an ongoing territorial dispute in that section of the city and one witness reported that, shortly before the shooting commenced, defendant told a member of the group that was fired upon to “get that shit out of here.” Defendant admitted to police he was at the intersection of Second Street and Quail Street at the time of the shooting, shell casings were found at that location and defendant received a gunshot wound in his foot on the subject night. According to two police detectives who questioned defendant, at one point in the conversation, he blurted, “I don‘t know who I shot.” Defendant testified at trial and denied making that statement to the detectives. He further claimed that he was merely out taking a walk when the gunfight commenced
We do, however, find merit in defendant‘s argument that two evidentiary errors occurred, the combined effect of which require reversal. During the trial, the People were permitted, over objection, to impeach on direct examination the testimony of Reno Conley, a witness whom they had produced. “A party may impeach its own witness only if that witness gives testimony upon a material issue or fact which ‘tends to disprove the party‘s position or affirmatively damages the party‘s case‘” (People v Andujar, 290 AD2d 654, 656 [2002], lv denied 98 NY2d 648 [2002], quoting People v Saez, 69 NY2d 802, 804 [1987]; see
Moreover, the prosecution presented, as rebuttal evidence and over defense counsel‘s objection, testimony from a police officer that defendant had nicknames of “Two Guns” and “Killer.”
We conclude that these evidentiary errors cannot be characterized as harmless in light of the circumstantial nature of much of the proof and the conflicting testimony on key issues (see People v Stewart, 20 AD3d 769, 770-771 [2005]; People v Spencer, 1 AD3d 709, 711 [2003]; cf. People v Santiago, 255 AD2d 63, 66 [1999], lv denied 94 NY2d 829 [1999]). The remaining issues are academic or without merit.
Crew III, J.P., Peters, Mugglin and Rose, JJ, concur.
Ordered that the judgment is reversed, on the law, and matter remitted to the Supreme Court for a new trial.