People v. KearneyPeople v. Kearney
The senseless and heinous acts perpetrated against а young woman one evening in the City of Albany by defendant and three others (Elias Estrella, Nelson Polanco and Edwin Rosado) are well known to this Court, which has affirmed the convictions of Rosado and Polanco following separate trials (People v Rosado, 26 AD3d 532 [2006], lv denied 7 NY3d 762 [2006]; People v Polanco, 13 AD3d 904 [2004], lv denied 4 NY3d 802 [2005]). Following his own trial, defendant was similarly found
The trial testimony of the victim and Estrella established that it was defendant‘s anger at being jumped by two “kids” on the afternoon in question—and subsequent conclusion that the victim must have had something to do with it because she was thereafter in their company—that started the chain of events that ultimаtely ended in her being shot in the face by Polanco and left for dead on the street by all four men. In particular, evidence at trial revealed that defendant importuned his cohorts to go on the prowl for his assailants. When they thereafter spotted the duo with the victim, they drove to a nearby residence, retrieved a gun and went back out in search of them, to no avail.
Later that same night, the foursome was back out in search of dеfendant‘s assailants when they happened upon the victim walking alone. At this time, according to the victim, defendant forced her at gunpoint into their vehicle. After driving around for a short period of time, defendant (still armed with thе gun) ordered her back out of the vehicle and accused her of setting him up. While defendant was initially willing to let thе victim go after his tirade of accusations outside the vehicle, his willingness was fleeting. According to the victim, as she began to walk away, defendant ran after her with the gun still in his hand and forced her back into the car.* Then, upon Pоlanco‘s repeated demands that she be killed, defendant handed him the gun and ordered Estrella to removе her from the vehicle (to avoid getting blood inside it) and to go through her pockets before Polanco shot her. Defendant then confiscated the money that was removed.
Defendant‘s version of the events differed dramatically from that of the victim and Estrella. According to defendant, when he ran into the victim that night, she agreed to “take a ride with [him].” He denied using any force to get her into the vehicle, denied sticking a gun into her side and, in fact, denied possessing or even seeing a gun until Polanco pulled one out and shot her. He claimed that he was “shоcked” when Polanco shot her and that he had “no idea he was getting ready to do this to her.” As for directing Estrellа to go through the victim‘s pockets, defendant claimed that the victim had his keys and he was merely attempting to retrieve them. He also denied that Estrella
On appeal, defendant first challenges the legal sufficiency of the evidence agаinst him concerning the attempted murder count. However, his general motion to dismiss during the trial failed to propеrly preserve this claim (see e.g. People v Finger, 95 NY2d 894, 895 [2000]; People v Gray, 86 NY2d 10, 19 [1995]; People v Gibbs, 34 AD3d 1120, 1121 [2006]; People v Parker, 29 AD3d 1161, 1162 n 1 [2006], affd 7 NY3d 907 [2006]). In any event, viewed in the light most favorable to the People (see People v Cabey, 85 NY2d 417, 420 [1995]), the testimony was more than sufficient to enable a rational jury to conclude that defendant committed each of the chargеd crimes, including attempted murder as an accomplice (see id. at 420-422; People v Whatley, 69 NY2d 784, 785 [1987]; People v Rosado, supra at 533; People v McDonald, 257 AD2d 695, 696 [1999], lv denied 93 NY2d 876 [1999]; People v Motter, 235 AD2d 582, 585 [1997], lv denied 89 NY2d 1038 [1997]; People v Pittman, 189 AD2d 918, 918-919 [1993], lv denied 81 NY2d 891 [1993]). Moreover, viewing the evidence in a neutral light and deferring to the jury‘s credibility determinations, we reject defendant‘s argument that certain convictions, including the attempted murder conviction, are against the weight of the evidence (see
Next, defendant contends that the People committed Rosario and Brady violations by failing to turn over the transcript from Polanco‘s trial. Bоth claims are being raised for the first time on appeal and are thus unpreserved for review (see
Finally, noting that defendant has taken no responsibility for his role in this callous and senseless crimе nor shown remorse for the victim‘s devastating injuries, and further noting his criminal history, we find no abuse of discretion nor extraоrdinary circumstances warranting a reduction in his sentence (see People v Polanco, supra at 906-907).
Defendant‘s remaining contentions, including the claim that he was denied the effective assistance of counsel, have been considered and rejected.
Ordered that the judgment is affirmed.