People v. ThomasPeople v. Thomas
Defendant‘s arrest arose from a 2008 shooting outside of a bar in the City of Cohoes, Albany County.1 Defendant was indicted for attempted murder in the second degree, two counts of assault in the first degree (intentional assault and depraved indifference assault), criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. At trial, the People offered testimony from the victim, police officers and three eyewitnesses; the eyewitnesses, defendant and the victim all knew one another. On stipulation, County Court received in evidence a redacted letter from defendant to the court that was sent—after his plea and before sentencing in the prior proceeding—from the county jail in which he admitted to the shooting but asserted that it was not intentional. The defense called no witnesses. The court granted, in part, defendant‘s posttrial motion to dismiss (see
We affirm. Defendant first asserts that County Court should have granted his posttrial motion to dismiss all charges because the evidence was not legally sufficient and the jury‘s verdict was against the weight of the credible evidence. Notably, defendant‘s legal sufficiency arguments with respect to the weapons possession charges are not preserved (see People v Gray, 86 NY2d 10, 19 [1995]). However, we will necessarily review the sufficiency of all of the proof adduced at trial in the context of
The trial evidence was legally sufficient to demonstrate that defendant committed the crime of intentional assault in the first degree (see
We now turn to defendant‘s assertion that his convictions are against the weight of the evidence. Here, a different outcome would not have been unreasonable as the eyewitnesses and the victim did not actually see a gun and no gun was ever found (see People v Danielson, 9 NY3d 342, 348 [2007]). Nonetheless, “weigh[ing] the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from [all of] the testimony” (People v Sanchez, 75 AD3d 911, 913 [2010], lv denied 15 NY3d 895 [2010] [internal quotation marks and citations omitted]; see People v Bleakley, 69 NY2d at 495), we find that the credible evidence supports the verdict. To the extent that defendant claimed in the letter that he shot the gun “unintentionally” and that he was “not meaning to hurt or kill anyone,” the testimony from the eyewit
We are also not persuaded by defendant‘s pro se argument that he was deprived of the effective assistance of counsel, given that the record—when viewed objectively and in its totality—reflects that he received meaningful representation (see People v Cummings, 16 NY3d 784, 785 [2011], cert denied 565 US —, 132 S Ct 203 [2011]; People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 146-147 [1981]). With respect to trial strategy, “counsel‘s efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective” (People v Benevento, 91 NY2d at 712; see People v Turner, 5 NY3d 476, 480 [2005]). Moreover, defendant bears a “high burden” (People v Hobot, 84 NY2d 1021, 1022 [1995]) to “demonstrate the absence of strategic or other legitimate explanations” for counsel‘s alleged shortcomings (People v Rivera, 71 NY2d 705, 709 [1988]; accord People v Baker, 14 NY3d 266, 270-271 [2010]).
Counsel consistently pursued the legitimate strategy of disputing the proof that defendant caused the serious physical injury to the victim, he successfully moved to dismiss the count of depraved indifference assault and obtained an acquittal on the attempted murder count. Further, defendant has made no showing that there was a colorable basis on which to move to suppress his letter to County Court, given that the letter was not made in response to any police questioning (see People v Caban, 5 NY3d 143, 152 [2005]; People v Stultz, 2 NY3d 277, 287 [2004]; cf. People v Carnevale, 101 AD3d 1375, 1379-1380 [2012]; People v Vigil, 31 AD3d 794, 794 [2006], lv denied 7 NY3d 852 [2006]). Counsel‘s stipulation that defendant wrote the letter supported the defense theory that it was an accidental shooting, at most.
Defendant‘s argument that trial counsel failed to adequately impeach the People‘s eyewitnesses is dependent upon their statements to the police that are outside the record and, therefore, this argument “is not generally reviewable” (People v Moore, 97 AD3d 850, 851 [2012]). In any event, counsel‘s decision to forgo questioning the eyewitness about previous statements that they saw defendant holding a gun was a legitimate strategy not to elicit incriminating testimony. Lastly, any incidents of prosecutorial misconduct during the People‘s closing argument were not “so substantially prejudicial as to deprive defendant of a fair trial” and, therefore, defense
Finally, defendant argues that his sentence is harsh and excessive and should be reduced because he is remorseful, as evidenced by his letter to County Court, and capable of being rehabilitated. The sentence reflected the seriousness of defendant‘s conduct in shooting a gun in a crowd. Given defendant‘s prior criminal history and that the victim—who was shot in the back—sustained extensive injuries requiring surgery and protracted hospitalization and that a bullet remains lodged in his spine, we perceive no extraordinary circumstances or abuse of discretion to justify a reduction in the interest of justice.
Mercure, J.P., McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.