Opinion
1133 KA 16–01623
11-15-2019
The PEOPLE of the State of New York, Respondent, v. Damien TRIPP, Defendant–Appellant.
LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT–APPELLANT. DAMIEN TRIPP, DEFENDANT–APPELLANT PRO SE. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT–APPELLANT.
DAMIEN TRIPP, DEFENDANT–APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by directing that all of the sentences imposed shall run concurrently and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of criminal possession of a weapon in the second degree ( Penal Law § 265.03[1][b] ; [3] ) and one count of assault in the second degree (§ 120.05[2] ). Defendant shot the victim in the leg during an argument at a party in October 2014, and the same victim was shot and killed by a masked gunman approximately one month later, in November 2014. After the victim's murder, several people who had attended the October 2014 party identified defendant as having been present that night and as having shot the victim. Defendant was charged with both assault and murder, but was convicted only with respect to the charges associated with the October 2014 shooting, and was acquitted on all charges related to the November 2014 murder.
We reject defendant's contention in his main brief that verdict is 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] ). Four witnesses to the October 2014 shooting testified that defendant was present on the night that the victim was shot, that he argued with the victim, and that he fired a gun in the victim's direction. Although defendant identifies reasons to question the witnesses' veracity, "the testimony of the People's witnesses was not incredible as a matter of law, i.e., it was not impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory" ( People v. Perkins, 160 A.D.3d 1455, 1457, 76 N.Y.S.3d 700 [4th Dept. 2018], lv. denied 31 N.Y.3d 1151, 83 N.Y.S.3d 433, 108 N.E.3d 507 [2018] [internal quotation marks omitted]; see People v. Resto, 147 A.D.3d 1331, 1334, 47 N.Y.S.3d 522 [4th Dept. 2017], lv denied 29 N.Y.3d 1000, 57 N.Y.S.3d 722, 80 N.E.3d 415 [2017], reconsideration denied 29 N.Y.3d 1094, 85 N.E.3d 105 [2017] ; People v. Griffin, 128 A.D.3d 1218, 1219–1220, 9 N.Y.S.3d 471 [3d Dept. 2015], lv denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016], reconsideration denied 27 N.Y.3d 1151, 39 N.Y.S.3d 385, 62 N.E.3d 125 [2016] ). " ‘Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence,’ we must afford great deference to the fact-finder's opportunity to view the witnesses, hear their testimony and observe their demeanor" ( People v. Friello, 147 A.D.3d 1519, 1520, 47 N.Y.S.3d 620 [4th Dept. 2017], lv denied 29 N.Y.3d 1031, 62 N.Y.S.3d 300, 84 N.E.3d 972 [2017] ), and we conclude that the jury properly considered the issues of credibility, including the inconsistencies in the witnesses' testimony, and there is no basis for disturbing its determinations (see People v. Rogers, 70 A.D.3d 1340, 1340, 894 N.Y.S.2d 313 [4th Dept. 2010], lv denied 14 N.Y.3d 892, 903 N.Y.S.2d 780, 929 N.E.2d 1015 [2010], cert denied 562 U.S. 969, 131 S.Ct. 475, 178 L.Ed.2d 302 [2010] ). With respect to defendant's contention that the evidence did not establish that he intended to shoot the victim because some of the witnesses testified that defendant shot at the ground, the jury could have reasonably inferred that defendant was aiming his gun at the victim with intent to cause him physical injury based on the evidence that defendant had been arguing with the victim prior to the shooting, and that witnesses testified that defendant fired multiple shots from close range in the victim's direction (see People v. Tatis, 170 A.D.3d 45, 50–51, 95 N.Y.S.3d 160 [1st Dept. 2019], lv denied 33 N.Y.3d 981, 101 N.Y.S.3d 235, 124 N.E.3d 724 [2019] ).
We agree with defendant in his main brief, however, that the sentence is illegal insofar as County Court directed that the sentences imposed on the two counts charging criminal possession of a weapon in the second degree run consecutively to the sentence imposed on the count charging assault in the second degree. We note that defendant's contention does not require preservation (see People v. Fuentes, 52 A.D.3d 1297, 1300–1301, 859 N.Y.S.2d 841 [4th Dept. 2008], lv denied 11 N.Y.3d 736, 864 N.Y.S.2d 395, 894 N.E.2d 659 [2008] ). The People had the burden of establishing that consecutive sentences were legal, i.e., that the crimes were committed through separate acts or omissions (see People v. Rodriguez, 25 N.Y.3d 238, 244, 10 N.Y.S.3d 495, 32 N.E.3d 930 [2015] ; see generally Penal Law § 70.25[2] ), and they failed to meet that burden. With respect to the count charging criminal possession of a weapon in the second degree under Penal Law § 265.03(1)(b), "the People neither alleged nor proved that defendant's possession [of the gun] was marked by an unlawful intent separate and distinct from his intent to shoot the victim[ ]" ( People v. Wright, 19 N.Y.3d 359, 367, 948 N.Y.S.2d 228, 971 N.E.2d 358 [2012] ). With respect to the count charging criminal possession of a weapon in the second degree under Penal Law § 265.03(3), there was no evidence presented at trial that defendant's act of possessing a loaded firearm "was separate and distinct from" his act of shooting the victim ( People v. Harris, 115 A.D.3d 761, 763, 981 N.Y.S.2d 451 [2d Dept. 2014], lv denied 23 N.Y.3d 1062, 994 N.Y.S.2d 322, 18 N.E.3d 1143 [2014], reconsideration denied 24 N.Y.3d 1084, 1 N.Y.S.3d 11, 25 N.E.3d 348 [2014] ; see People v. Houston, 142 A.D.3d 1397, 1399, 38 N.Y.S.3d 368 [4th Dept 2016], lv denied 28 N.Y.3d 1146, 74 N.E.3d 682 [2017] ; see generally People v. Brown, 21 N.Y.3d 739, 750–752, 977 N.Y.S.2d 723, 999 N.E.2d 1168 [2013] ). We therefore modify the judgment by directing that all of the sentences shall run concurrently. The sentence, as modified, is not unduly harsh or severe.
Defendant contends in his pro se supplemental brief that he was denied his right to present a defense when the court refused to allow him to call a witness who had indicated, outside the presence of the jury, that he would invoke his privilege against self-incrimination. We reject that contention. "[T]he decision whether to permit defense counsel to call a particular witness solely ‘to put him to his claim of privilege against self[-]incrimination in the presence of the jury’ rests within the sound discretion of the trial court" ( People v. Thomas, 51 N.Y.2d 466, 472, 434 N.Y.S.2d 941, 415 N.E.2d 931 [1980] ; see People v. Grimes, 289 A.D.2d 1072, 1073, 735 N.Y.S.2d 857 [4th Dept. 2001], lv denied 97 N.Y.2d 755, 742 N.Y.S.2d 615, 769 N.E.2d 361 [2002] ), and we perceive no abuse of discretion here.
Contrary to defendant's further contention in his pro se supplemental brief, the court did not abuse its discretion in denying defendant's request for a day's adjournment to prepare for summations. "The decision whether to grant an adjournment lies in the sound discretion of the trial court ... and the court's exercise of that discretion ‘in denying a request for an adjournment will not be overturned absent a showing of prejudice’ " ( People v. Adair, 84 A.D.3d 1752, 1754, 922 N.Y.S.2d 696 [4th Dept. 2011], lv denied 17 N.Y.3d 812, 929 N.Y.S.2d 801, 954 N.E.2d 92 [2011] ; see Resto, 147 A.D.3d at 1332, 47 N.Y.S.3d 522 ). Defendant has made no showing that he was prejudiced by the court's ruling.
Defendant failed to preserve for our review his contention in his pro se supplemental brief that the prospective jurors were not given the requisite oath pursuant to CPL 270.15(1)(a) (see People v. Gaston, 104 A.D.3d 1206, 1207, 960 N.Y.S.2d 590 [4th Dept. 2013], lv denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014] ; People v. Schrock, 73 A.D.3d 1429, 1432, 900 N.Y.S.2d 804 [4th Dept. 2010], lv denied 15 N.Y.3d 855, 909 N.Y.S.2d 33, 935 N.E.2d 825 [2010] ). In any event, that contention is not supported by the record.