People v. MalloyPeople v. Malloy
| People v Malloy |
| Decided on November 21, 2018 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: November 21, 2018
108394
v
EDWARD MALLOY, Also Known as EB, Appellant.
Calendar Date: September 11, 2018
Before: Garry, P.J., Clark, Mulvey, Rumsey and Pritzker, JJ.
Paul J. Connolly, Delmar, for appellant, and appellant
pro se.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
MEMORANDUM AND ORDER
Mulvey, J.
Appeal from a judgment of the Supreme Court (Mott, J.), rendered March 11, 2016 in Albany County, upon a verdict convicting defendant of the crimes of murder in the second degree and criminal possession of a weapon in the second degree.
Following a jury trial, defendant was convicted of murder in the second degree and criminal possession of a weapon in the second degree. The charges stemmed from a February 16, 2014 incident outside a tavern in the City of Albany during which the victim was shot multiple times and killed. Defendant was sentenced to consecutive prison terms of 22 years to life on the murder conviction and seven years, followed by five years of postrelease supervision, on the criminal possession of a weapon conviction. He now appeals.
Initially, we reject defendant's contention that the indictment must be dismissed because the integrity of the grand jury proceeding was impaired. A grand jury proceeding that yields an indictment is defective when it "fails to conform to the requirements of [CPL article 190] to such degree that the integrity thereof is impaired and prejudice to the defendant may result" (CPL 210.35 [5]). Although a "defendant need not demonstrate actual prejudice under this statutory scheme to prevail" (People v Sayavong,
The minutes of the grand jury presentment reflect three instances where a grand juror acknowledged that he/she knew a witness [FN1]. In each instance, the prosecutor inquired whether there was anything concerning the grand juror's knowledge of the witness that would lead the grand juror to believe that he/she could not be fair and impartial, and each answered in the negative (see People v Richardson,
Defendant next challenges the verdict as unsupported by legally sufficient evidence and against the weight of the evidence, primarily arguing that the People's proof — which was largely circumstantial in nature — failed to establish his identity as the shooter [FN2]. "[E]ven in circumstantial evidence cases, the standard for appellate review of legal sufficiency issues is 'whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the fact finder on the basis of the evidence at trial, viewed in the light most favorable to the People'" (People v Hines,
The People's theory of the case was that defendant intentionally shot and killed the victim as the culmination of an ongoing, heated altercation between the two that transpired less than an hour earlier. Because the murder weapon was never discovered and none of the individuals who were undisputedly present at the scene claimed to have witnessed the killer in the act of shooting, the People relied heavily upon surveillance video footage taken from cameras located in the interior and exterior of the tavern, as well as video footage obtained from a City-owned street camera positioned approximately 100 yards south of the tavern. Taken together, the footage shows that defendant and the victim separately arrived at the tavern at approximately 3:00 a.m. on the morning of February 16, 2014. While outside, they are seen exchanging words and engaging in physical contact, with defendant ultimately pushing the victim to the ground. The two thereafter proceeded inside where the verbal dispute continued, causing the tavern's bouncer to intervene in an effort to stop what he perceived to be an imminent altercation. "While this proof of a potential motive does not establish an element of the crime, it cannot be ignored" (People v Stanford,
The victim exited the tavern roughly 10 minutes later, after which defendant can be seen making several calls on his cell phone. Soon thereafter, a Buick Rendezvous being driven by defendant's girlfriend, Marika Hodge, arrives and parks in front of the tavern. As Hodge enters the tavern, defendant immediately gets up from his seat and walks to the rear of the establishment. Hodge follows, with her right hand stiffly in her coat pocket. The two then proceed to enter the bathroom and reemerge approximately 20 seconds later, with Hodge's hand now swinging freely beside her. Defendant, Hodge and several others — including Marquetta Jackson, a mutual friend of defendant and the victim — thereafter remain in the tavern until approximately 3:30 a.m., when the tavern begins to close down.
Once outside, defendant — who appears in a visibly agitated state — can be seen pacing and looking around while placing his hand behind his back as if attempting to grasp something. Moments later, an animated conversation transpires between defendant and Hodge during which Hodge is depicted grabbing at defendant and reaching around his backside in an apparent attempt to pull something away from him. At this point, video surveillance captures defendant holding a gun behind his back before eventually secreting it in his rear waistband. Meanwhile, from the street camera, the victim can be observed exiting his vehicle and walking to a small parking lot located approximately 20 to 25 feet south of the tavern. Jackson — who had made three successive attempts to contact the victim during the brief period since she and the others exited the tavern — then leaves the front of the establishment and can be seen on footage from the street camera walking in the direction of the victim. When defendant went to follow, Hodge attempted to physically restrain him and the two grappled before defendant eventually pulled away. Defendant then proceeded to the parking lot where the victim and Jackson were located, followed by Hodge and defendant's two cousins, Eshod Malloy and William Bonds. Soon thereafter, a woman is shown exiting a vehicle and joining the group. Among these six [*4]individuals who joined the victim, only defendant was wearing a dark top and light-colored pants.
Less than a minute later, the victim can be seen taking a step back and then collapsing to the ground. While the street camera depicted the murder, it was not of such quality that the identity of the shooter is apparent. As the group flees the scene, two individuals are visible running into the street together and then proceeding to the vehicle that Hodge had arrived in earlier. Notably, the taller of the two appears to be wearing pants of a slightly lighter color than his/her top. As the taller figure begins to enter the passenger side of the vehicle, a silhouette of what appears to be a gun is visible in this individual's hand.
A detective who investigated the crime scene found six .45 caliber shell casings arranged more or less in a linear formation within feet of the victim's body. The People also called an expert in the field of firearms, who examined the shell casings at issue and opined that they were fired from the same gun. Upon execution of a search warrant at defendant's home, police discovered two live .45 caliber rounds in the dresser drawer of a bedroom. An autopsy determined that the victim suffered gunshot wounds to his chest, hip, forearm and hands, and that his death was caused by a gunshot wound to the neck. Based upon the trajectory of the fatal bullet, the medical examiner who performed the autopsy concluded that either the shooter was directly above the victim or the victim was bending toward the shooter at the time of impact.
Viewing the foregoing evidence in the light most favorable to the People, we find that it was legally sufficient to support defendant's convictions of these crimes. "In the end, it is a question whether common human experience would lead a reasonable [person], putting his [or her] mind to it, to reject or accept the inferences asserted for the established facts" (People v Wachowicz,
We next address defendant's assertion that Supreme Court erred in denying his Batson challenge (see Batson v Kentucky,
The first step of this analysis need not detain us, as the issue of whether defendant established a prima facie case became moot when the prosecutor stated his race-neutral reasons for the subject challenge (see People v Hecker,
We therefore turn to the third and final step of the Batson inquiry, which "requires the trial court to make an ultimate determination on the issue of discriminatory intent based on all of the facts and circumstances presented" (People v Smocum,
We are similarly unconvinced that defendant was denied his right to a fair trial when Supreme Court refused to allow Bonds to take the stand solely for the purpose of invoking his privilege against self-incrimination in the presence of the jury. Such a determination rests within the sound discretion of the trial court (see People v Thomas,
Finally, we are unpersuaded by defendant's sentencing challenges. Supreme Court lawfully ran the sentence imposed on the murder count consecutively with the sentence imposed on the count of "simple" weapon possession (see Penal Law § 265.03 [3]), as the trial evidence [*7]demonstrated that defendant completed the act of possession within the meaning of that statute before the shooting occurred (see People v Brown,
To the extent not specifically addressed herein, defendant's remaining contentions have been examined and found to be without merit.
Garry, P.J., Rumsey and Pritzker, JJ., concur.
Clark, J. (dissenting).
I cannot join the majority in upholding Supreme Court's denial of defendant's Batson claim regarding the People's use of a peremptory challenge to excuse juror No. 13. Accordingly, I respectfully dissent.
In my view, Supreme Court failed to satisfy its "judicial responsibility" to make an adequate record "reflecting the basis for [it]s ruling[]" (People v Payne,
At no point did Supreme Court give any indication that it believed any of the race-neutral reasons offered by the prosecutor or that the prosecutor's subjective impressions of juror No. 13 might have some basis in the record. Nor did Supreme Court indicate that its challenges and rebukes of the prosecutor's reasons were intended to test the sincerity of those reasons. To infer such an intention on the part of Supreme Court would, in my view, be to unduly engage in speculation. In the absence of an adequate record setting forth the basis for Supreme Court's ruling, I am unable to engage in an intelligent and meaningful review of the issue (see People v Acevedo,
ORDERED that the judgment is affirmed.
Footnote 1: It is impossible to determine from the minutes whether these acknowledgements were made by three separate grand jurors or whether one of the grand jurors knew multiple witnesses, as there is no grand juror number or other identifying information recorded in the minutes.
Footnote 2: In his pro se supplemental brief, defendant also contends that the People failed to present legally sufficient evidence of his intent to cause the death of the victim. By failing to raise this specific ground in his motion for a trial order of dismissal, defendant has not preserved the issue for our review (see People v Glover,
Footnote 3: Contrary to the position taken by the dissent, we need not engage in supposition or speculation to discern the basis for Supreme Court's ruling. To be sure, there can be no question that the court could have provided a more detailed elaboration for its decision to deny the Batson challenge. That said, Supreme Court's ruling that it was finding in favor of the prosecution "[f]or the reasons set forth on the record" could mean only one thing — that it was crediting the prosecutor's stated reasons for the peremptory challenge. Even assuming that this singular conclusion does not necessarily follow from the statements made by Supreme Court in its ruling, we nevertheless find that, "by denying defendant's Batson challenge, the court thereby implicitly determined that the prosecutor's race-neutral explanations for exercising [the] peremptory challenge were not pretextual" (People v Smith,
Footnote 4: It is evident from defense counsel's on-the-record expression of shock immediately following Supreme Court's ruling that he had expected and anticipated the opposite ruling.