THE PEOPLE OF THE STATE OF NEW YORK, Rеspondent, v JOEL HERNANDEZ, Also Known as HAZE, Appellant
Appellate Division of the Supreme Court of New York, Third Department
November 3, 2011
89 A.D.3d 1123 | 931 N.Y.S.2d 780
Defendant was convicted, following a jury trial, of various crimes stemming from a shootout that occurred in August 2007 in the City of Schenectady, Schenectady County, allegedly between himself, codefendant Charles Ardrey and Diondrea McCaskill, the paramour of Ardrey‘s ex-girlfriend, during which twо innocent bystanders were injured. Defendant thereafter was sentenced as a second felony offender to an aggrеgate term of 30 years in prison with five years of postrelease supervision. On defendant‘s appeal, we now affirm.
Where, as here, there is a proper nonpropensity purpose to the admission of prior bad acts, nаmely, defendant‘s intent to possess and sell cocaine recovered from Ardrey, “the decision whether to admit [such] evidеnce . . . rests upon the trial court‘s discretionary balancing of probative value and unfair prejudice” (People v Barreto, 64 AD3d 1046, 1049 [2009], lv denied 13 NY3d 834 [2009] [internal quotation marks and citations omitted]). Our review of the record reveals that County Court balanced the prejudice to defendant against the probative value of the proffered evidence, and ultimately permitted the introduction of the Vermont drug-related conviction as relevant to the People‘s theory of the case that defendant and Ardrey were accomplices in the newly charged drug-related crimes, but denied the People‘s request to introduce evidence of gang affiliаtion and the other prior charges. Under these circumstances, we reject defendant‘s contention that County Court failed to engage in a proper Molineux analysis or otherwise abused its discretion (see People v Alvino, 71 NY2d 233, 242 [1987]; People v Barreto, 64 AD3d at 1049; People v Echavarria, 53 AD3d 859, 863 [2008], lv denied 11 NY3d 832 [2008]).
Defendant also argues that the jury‘s finding that he possessed and fired a weapon was agаinst the weight of the evidence because none of the People‘s witnesses testified to actually seeing him hold and fire a weapon during the shootout. We disagree, based on the strong circumstantial evidence supporting the jury‘s findings. Testimony from witnesses established that defendant was in possession of a handgun the day prior to the incident, which he purchased in Rutland, Vermont and brought to Schenectady, and that defendant and Ardrey had each armed themselves with handguns at a Schenectady apart
According to defendant‘s female acquaintance, after defendant—sporting a gunshot wound to the arm—and Ardrey got back in her car, defendant handed a gun to Ardrey, who had discarded his own wеapon prior to getting back in the car. When the car was then stopped by police, Ardrey ran from the vehicle, throwing the handgun to the ground, where it was recovered. She then drove defendant back to the apartment as the police pursued Ardrey. At the apartment, defendant told another friend that McCaskill had started shooting at him and that he had returned fire. At the sсene of the shootout, the police recovered expended shell casings from three different handguns, and a test сonducted by the State Police revealed that a casing found at the crime scene had been fired by the gun discarded by Ardrey and recovered by police. According appropriate deference to the jury‘s credibility determinations (see People v Romero, 7 NY3d 633, 645 [2006]) and considering the evidence in a neutral light along with the reasonable inferences that can be drawn therefrom, we conclude that the jury‘s finding that defendant was in possession of a handgun that he fired at McCaskill is supported by the weight of the crеdible evidence (see
Defendant failed to preserve his argument that he was deprived of a fair trial when—at trial—County Court allowed the People, and for that matter, defense counsel, to use his nickname “Haze” and occasionally other parties’ nicknames (see
Likewise, we reject defendant‘s remaining contentions, finding that he was not prejudiced by the prosecutor‘s reference during summation to defendant in the context of Ardrey‘s statement to police (see Bruton v United States, 391 US 123 [1968]). The prоsecutor properly referred only to Ardrey‘s redacted statement, and his use of the statement to draw inferences аbout defendant‘s participation in the crime by linking it to other trial evidence was permissible (see People v Pagan, 87 AD3d 1181, 1183-1185 [2011]). Nor do we find any basis to justify а reduction in his sentence, which was within the statutory guidelines (see
Peters, J.P, Lahtinen, Stein and Egan Jr., JJ, concur. Ordered that the judgment is affirmed.