Opinion
1218 KA 17–01348
03-13-2020
The PEOPLE of the State of New York, Respondent, v. James JORDAN, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, assault in the first degree ( Penal Law § 120.10[3] ). The charges arose after defendant fired a gun into a crowd emerging from a hookah lounge following a fight that had broken out in the lounge. One man was shot in the foot and another man was shot in the neck.
Contrary to defendant's contention, the conviction is supported by legally sufficient evidence of his identity as the shooter (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; see generally People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ). The trial evidence included security camera footage showing defendant and his group arriving at the lounge. The footage depicted the clothing that defendant was wearing, which witnesses were able to identify, as well as the distinctive blue and white shirt worn by one of defendant's friends, who provoked the fight that led to the evacuation of the lounge. Security camera footage did not show the faces of the people leaving the lounge but did show a man wearing the same clothing as defendant discharging a gun and, at the same time, being approached, touched, and led from the scene by a second man. Although the second man was not wearing a shirt, cell phone video footage of the event showed the same man removing a blue and white shirt, and police later collected the distinctive shirt worn by defendant's friend from the scene of the shooting. Finally, defendant's flight to South Carolina by bus the next day is evidence of consciousness of guilt (see People v. Velazquez, 100 A.D.3d 1504, 1506, 953 N.Y.S.2d 802 [4th Dept. 2012], lv denied 20 N.Y.3d 1015, 960 N.Y.S.2d 358, 984 N.E.2d 333 [2013] ; see generally People v. Yazum, 13 N.Y.2d 302, 304–305, 246 N.Y.S.2d 626, 196 N.E.2d 263 [1963], rearg. denied 15 N.Y.2d 679, 255 N.Y.S.2d 1027, 204 N.E.2d 217 [1964] ). Viewing the evidence in the light most favorable to the People, we conclude that "there is a valid line of reasoning and permissible inferences from which a rational jury could have" determined that defendant was the shooter ( Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [internal quotation marks omitted]; see generally Contes, 60 N.Y.2d at 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ). Further, viewing the evidence in light of the elements of the crimes as charged to the jury (see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
We reject defendant's contention that certain Facebook images of defendant and other people were not properly authenticated and that Supreme Court therefore erred in admitting them in evidence. The authenticity of each image was established by the testimony of a witness who had personal knowledge of the people in the images and who verified that the images "accurately represented the subject matter depicted" ( People v. Byrnes, 33 N.Y.2d 343, 347, 352 N.Y.S.2d 913, 308 N.E.2d 435 [1974] ; cf. People v. Wells, 161 A.D.3d 1200, 1200, 77 N.Y.S.3d 668 [2d Dept. 2018], lv denied 32 N.Y.3d 1009, 86 N.Y.S.3d 768, 111 N.E.3d 1123 [2018] ; see generally People v. Price, 29 N.Y.3d 472, 477–480, 58 N.Y.S.3d 259, 80 N.E.3d 1005 [2017] ).
Defendant further contends that the court erred in permitting a police detective to give testimony identifying defendant as the shooter in the security camera footage and drawing certain inferences from that footage (see generally People v. Graham, 174 A.D.3d 1486, 1487–1488, 105 N.Y.S.3d 756 [4th Dept. 2019], lv denied 34 N.Y.3d 1016, 114 N.Y.S.3d 759, 138 N.E.3d 488 [2019] ; People v. Carroll, 300 A.D.2d 911, 916, 753 N.Y.S.2d 148 [3d Dept. 2002], lv denied 99 N.Y.2d 626, 760 N.Y.S.2d 107, 790 N.E.2d 281 [2003] ). To the extent that defendant's contention is preserved for our review (see CPL 470.05[2] ), we conclude that any error in the admission of that testimony is harmless (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ; Graham, 174 A.D.3d at 1488, 105 N.Y.S.3d 756 ). We note that the court sustained at least one objection from defense counsel after a nonresponsive answer from the police detective and issued a curative instruction with respect to that answer, which the jury is presumed to have followed (see People v. VanDyne, 63 A.D.3d 1681, 1682, 881 N.Y.S.2d 268 [4th Dept. 2009], lv denied 14 N.Y.3d 845, 901 N.Y.S.2d 152, 927 N.E.2d 573 [2010] ; People v. Comfort, 30 A.D.3d 1069, 1070, 816 N.Y.S.2d 272 [4th Dept. 2006], lv denied 7 N.Y.3d 787, 821 N.Y.S.2d 816, 854 N.E.2d 1280 [2006] ; see also People v. Davis, 58 N.Y.2d 1102, 1104, 462 N.Y.S.2d 816, 449 N.E.2d 710 [1983] ). We also note that the court's final instructions to the jury alleviated much of the prejudice of the police detective's testimony of which defendant now complains. The court instructed the jury that they were the sole and exclusive judges of the facts, that the testimony of police officers should not automatically be accepted, and that defendant's identity was a disputed issue in the case. The court also instructed the jury how it should evaluate the accuracy of identification testimony. Again, the jury is presumed to have followed those instructions (see People v. Collins, 167 A.D.3d 1493, 1497, 90 N.Y.S.3d 759 [4th Dept. 2018], lv denied 32 N.Y.3d 1202, 99 N.Y.S.3d 191, 122 N.E.3d 1104 [2019] ; People v. Bibbes, 98 A.D.3d 1267, 1269–1270, 951 N.Y.S.2d 607 [4th Dept. 2012], amended on rearg 100 A.D.3d 1473, 954 N.Y.S.2d 923 [4th Dept. 2012], lv denied 20 N.Y.3d 931, 957 N.Y.S.2d 690, 981 N.E.2d 287 [2012] ; see also Davis, 58 N.Y.2d at 1104, 462 N.Y.S.2d 816, 449 N.E.2d 710 ).
Defendant's contention concerning the violation of his right to confront a witness against him is not preserved for our review (see CPL 470.05[2] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Given the senseless nature of the crimes, we conclude that the sentence is not unduly harsh or severe. We have examined defendant's remaining contention and conclude that it does not warrant reversal or modification of the judgment.