THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v CRAIG THOMPSON, Also Known as FELLA, Also Known as MONEY, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
October 21, 2010
904 NYS2d 797
Defendant was indicted for various crimes relating to the shooting death of Hassan Rainey. Defendant and his friends, Kassun Brown and Keith Dunbar, as well as Rainey, were all involved with selling drugs and had a dispute over money and drug sales during late August and early September 2007. On September 12, 2007, Dunbar was shot in the shoulder during an incident in which Rainey was involved. The next day, after Dunbar was discharged from the hospital, defendant was driving around in his minivan with Brown and Dunbar1 and came upon Rainey in his car at a red light. At defendant‘s urging, Brown pulled up alongside Rainey‘s vehicle in such a way that the passenger-side door of the minivan was lined up with Rainey‘s driver-side door. Defendant and Brown then shot at Rainey‘s vehicle and fled. It was subsequently determined that a .40 caliber bullet caused Rainey‘s death.
Following a jury trial, defendant was convicted of murder in the second degree, criminal possession of a weapon in the second degree, reckless endangerment in the first degree, tampering with physical evidence (two counts) and criminal possession of a weapon in the fourth degree. Defendant was thereafter sen-
Defendant challenges the legal sufficiency and/or weight of the evidence presented in support of his convictions. A conviction is based on legally sufficient evidence when, viewing the evidence in the light most favorable to the People, “there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” (People v Acosta, 80 NY2d 665, 672 [1993], quoting People v Steinberg, 79 NY2d 673, 682 [1992]; see People v Haskell, 68 AD3d 1358, 1359 [2009]). In reviewing whether convictions are supported by the weight of the evidence, we consider the evidence in a neutral light, accord deference to the jury‘s credibility determinations and, where a contrary verdict would not have been unreasonable, “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], quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]; see People v Johnson, 70 AD3d 1188, 1189-1190 [2010]).
With regard to his conviction of reckless endangerment in the first degree, we agree with defendant‘s contention that the evidence was legally insufficient to demonstrate a grave risk of death to Sharon Alexander (see
We also agree with defendant‘s assertion that his conviction
We disagree, however, with defendant‘s contention that his convictions of murder in the second degree and criminal possession of a weapon in the second degree were against the weight of the evidence because they were predicated on the testimony of incredible witnesses. Both Brown and Dunbar testified that, on September 13, 2007, defendant possessed the loaded .40 caliber gun that killed Rainey and that defendant fired the fatal shot. Dunbar also testified that, after they left the scene, defendant stated, “I think I hit him” and two other witnesses testified that defendant admitted to them that he killed Rainey. Rainey‘s cousin, who was riding in the passenger seat of Rainey‘s vehicle during the attack, testified that the shots came from the passenger side of the minivan and that the shooter‘s build was consistent with defendant‘s.
The foregoing testimony was sufficient to establish the elements of murder in the second degree and criminal possession of a weapon in the second degree (see
We turn next to defendant‘s challenges to the proof relating to his convictions of tampering with physical evidence. As relevant here, one is guilty of tampering with physical evidence where, “[b]elieving that certain physical evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent such production or use, he [or she] suppresses it by any act of concealment, alteration or destruction” (
As to the charge that defendant tampered with the .40 caliber gun that was involved in the shooting, defendant contends that the only evidence of his guilt was Scott‘s testimony that defendant admitted that he “got rid of it, broke it down.” Defendant argues that, inasmuch as his admission was uncorroborated, such evidence was legally insufficient to support his conviction. While it is true that a conviction cannot be predicated solely upon evidence of a defendant‘s confession or admission without additional proof that the offense charged has been committed (see
We find no merit to defendant‘s contention that County Court erred in providing a jury instruction on accessorial liability. Initially, we note that it is unnecessary that the indictment specify that the People were pursuing such a theory (see People v Rivera, 84 NY2d 766, 769 [1995]; see People v Duncan, 46 NY2d 74, 79-80 [1978], cert denied 442 US 910 [1979]; People v Robinson, 53 AD3d 681, 683-684 [2008], lv denied 11 NY3d 794 [2008]). Moreover, the People expressly reserved their right to present evidence suggesting that defendant was liable as an accessory, both in their bill of particulars and in open court. It was undisputed that the shots were fired from a minivan occupied by defendant, Brown and Dunbar, and there was testimony that defendant encouraged the driver to pull up to Rainey‘s vehicle and that he shot at Rainey. Even if the jury had concluded that defendant did not actually fire the fatal shot, there was ample evidence to support the conclusion that he “solicited, requested, commanded, importuned, or intentionally aided” the others with the intent to cause Rainey‘s death (
We also discern no error in County Court‘s refusal to instruct the jury that Dunbar was an accomplice as a matter of law for purposes of corroboration under
Contrary to defendant‘s argument, we find that he was not deprived of the effective assistance of counsel. Indeed, our review of the record reveals that counsel pursued the only plausible trial strategy—attacking the credibility of the parade of witnesses against defendant—made appropriate objections throughout the trial and even argued successfully for the dismissal or reduction of charges. Considering the totality of the circumstances and notwithstanding any arguable errors, all of which we find to be harmless (see People v Varmette, 70 AD3d 1167, 1172 [2010], lv denied 14 NY3d 845 [2010]), we are satis-
Defendant‘s remaining contentions have been considered and are unavailing.
Spain, J.P., Lahtinen, McCarthy and Garry, JJ., concur.
Ordered that the judgment is modified, on the law, by reversing so much thereof as convicted defendant of reckless endangerment in the first degree under count four of the indictment (count three submitted to the jury) and criminal possession of a weapon in the fourth degree (count six submitted to the jury); said counts dismissed and the sentences imposed thereon vacated; and, as so modified, affirmed.