THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v JERMAYNE TIMMONS, Also Known as MAINE, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
November 12, 2010
78 A.D.3d 1241 | 910 N.Y.S.2d 290
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v JERMAYNE TIMMONS, Also Known as MAINE, Appellant. [910 NYS2d 290]
McCarthy, J. Appeal from a judgment of the Cоunty Court of Albany County (Herrick, J.), rendered March 6, 2009, upon a verdict convicting
Defendant, who was 15 years old at the time, armed himself with a gun and, along with two neighborhood companions, rode his bike into another neighborhood in the City of Albany. He and his companions stopped at the intersection of First Street and Judson Street, where they saw three teenaged boys. After a brief “stare down,” defendant pulled the gun out of his pocket and the three rival boys began running up First Street. Defendant then fired a shot up First Street, in the direction of the running boys. Seconds later, another unidentified group of boys returned fire, shooting approximately three times at defendant‘s companions as they fled down First Street while defendant fled on Judson Street. When defendant was at the intersection, the victim, a 10-year-old girl, was on the front steps of her home, located more than a block up First Street from the intersection. A bullet struck her, quickly causing her death.
Defendant was charged as a juvenile offender with intentional murder in the second degree, depraved indifference murder in the second degree, manslaughter in the first degree, manslaughter in the second degree and criminal possession of a weapon in the second degree. County Court denied his motion to dismiss one or both of the murder charges. At trial, the jury convicted defendant of depraved indifference murder in thе second degree and criminal possession of a weapon in the second degree.1 The court sentenced defendant as a juvenile offender to a prison term of 15 years to life. Defendant appeals.
County Court did not err in submitting both murder counts
Defendant‘s conviction is based upon legally sufficient evidence and is not against the weight of the evidence. Defendant contends that the People failed to prove the element of deрraved indifference or that the fatal bullet came from defendant‘s gun. The Court of Appeals has stated that firing into a crowd and endangering innocent bystanders is a quintessential example of depraved indifference to human life (see People v Payne, 3 NY3d 266, 271-272 [2004]; People v Russell, 91 NY2d 280, 289-290 [1998]). In his written statement obtained by the police, defendant admitted possessing a loaded handgun and firing it on a residential street. He also acknоwledged that he noticed “7 or 8 other people up First Street,” including “an old lady up the street, a couple of other adults and a couple of kids.” This testimony was supported by one of his companions, who testified that at the time of the shooting, there were “people everywhere, on the corner, on the street.” This evidence was legally sufficient to demonstratе that defendant was aware of the presence of innocent people on the street but callously acted without any regard for their safety or the risk of death to those people when he fired a shot on the crowded street. Although defendant testified that he shot only because he thought one of the other boys was going to pull out a gun and he wanted to scarе away the neighborhood rivals, the jury could choose not to accept that alleged justification.
The People sufficiently proved that the fatal shot was fired by defendant. A .45 calibеr bullet was removed from the victim‘s body. A .45 caliber casing was recovered at the intersection where defendant admittedly fired a handgun. An expert testified
Defendant‘s argument concerning the admission of his apology notes to the victim‘s mother is unpreserved, as he did not object to their admission. Similarly, he did not object to most of the statements in the рrosecutor‘s opening and summation. Considering the few statements for which his argument is preserved, reversal is not required because County Court sustained the objections or issued cautionary instructiоns to the jury in regard to some of the statements and the remainder were a fair response to the defense closing, fair comment on the evidence or not pervasive so as to necessitate a new trial (see People v McCall, 75 AD3d 999, 1002 [2010]).
County Court did not err in admitting four autopsy photos. The trial court has discretion to admit such photographs if they support a disputed or material issue or are used to illustrate a point to the jury; a court must deny admission only if the photos “are proffered solely to arouse the jury‘s emotions and prejudice
Similarly, County Court did not err by permitting the Peoрle to elicit testimony from a detective on redirect concerning information in his investigative notes. This was not improper bolstering. Defendant opened the door to this testimony by implying on cross-examination that the detective fabricated his direct testimony regarding defendant‘s statements about the weapon he used. The People were then properly allowed tо rehabilitate the detective‘s credibility by showing that he had made prior consistent statements (see People v Seit, 86 NY2d 92, 95-96 [1995]).
The sentence was not harsh or excessive. Although defendant was only 15 years old when the shоoting occurred, he was on probation from Family Court at the time. As County Court noted, defendant was intelligent and had numerous resources offered to him, yet on the day in question he chose to skip school, smoke marihuana, arm himself with a handgun, ride with companions into a rival neighborhood looking for trouble, pull out his gun and shoot at boys who were running away from him despite seeing numerous people in the street. These brazen actions resulted in the senseless death of a young girl in front of her own home. Defendant admitted shooting a gun on a residential street, but continued to deny that his shоt killed the victim. The maximum sentence was imposed not only to punish defendant for his callous actions, but to deter other young people from carrying weapons and shooting them indiscriminately.
Mercure, J.P., Malone Jr., Garry and Egan Jr., JJ., concur.
Ordered that the judgment is affirmed.