People v. Thompkins , 20 N.Y.S.3d 188 ( 2015 )


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  •                            State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: November 5, 2015                    105515
    ________________________________
    THE PEOPLE OF THE STATE OF
    NEW YORK,
    Respondent,
    v                                      MEMORANDUM AND ORDER
    LAMAR A. THOMPKINS,
    Appellant.
    ________________________________
    Calendar Date:    September 8, 2015
    Before:    McCarthy, J.P., Egan Jr., Rose and Clark, JJ.
    __________
    Benjamin K. Bergman, Binghamton, for appellant, and
    appellant pro se.
    Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-
    Ulacco of counsel), for respondent.
    __________
    Rose, J.
    Appeal from a judgment of the County Court of Chemung
    County (Hayden, J.), rendered August 24, 2012, upon a verdict
    convicting defendant of the crime of criminal possession of a
    weapon in the second degree (two counts).
    Defendant was charged with two counts of criminal
    possession of a weapon in the second degree after an altercation
    occurred in which two men armed with bricks and a club confronted
    a third man who brandished and discharged a pistol, sending the
    other two running. After a jury trial, which focused on the
    issue of the identification of the shooter, defendant was
    convicted as charged. This appeal ensued.
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    We cannot agree with defendant's claim that the jury's
    verdict was against the weight of the evidence. At trial, the
    People presented the testimony of four witnesses who observed the
    altercation from different vantage points. The first eyewitness
    observed the encounter between the three men from his second
    floor apartment window, where he captured a portion of what
    transpired on video. This witness observed and filmed two men –
    one armed with a brick and the other armed with a piece of lumber
    – advancing on the third man. As all three moved out of the
    witness's line of sight, he heard a gunshot and then saw the two
    formerly armed men run back down the street in the opposite
    direction. Moments later, the third man reappeared in the
    witness's field of view, at which point he could see that the
    third man was holding a gun. While the witness was able to give
    a general description of all three men, he was not able to
    identify defendant as the third man. The People also called as
    witnesses the other two men involved in the altercation. They
    unequivocally confirmed that defendant was the third man
    involved, although they claimed that he had not possessed a
    firearm and they professed not to know who had fired the shot
    that caused them to run away.
    The People's fourth eyewitness was inside his nearby home
    when he heard an escalating argument taking place on the street.
    When he stepped outside to see what was going on, he got "a good
    look" at defendant and observed that he was holding a handgun.
    This witness then watched as two men armed with bricks charged at
    defendant, who responded by brandishing his pistol and firing it.
    Later that day, a police investigator showed the witness a photo
    array of six color photographs, but he was initially unable to
    identify defendant. The investigator then handed him a black and
    white photocopy of the same array and, upon observing it, the
    witness identified defendant, stating that he was 80% certain of
    his choice. At trial, this witness unequivocally identified
    defendant as the shooter and blamed his earlier lack of complete
    certainty on the fact that defendant looked much younger in the
    picture in the photo array.
    In light of the foregoing testimony, a different verdict
    would not have been unreasonable. However, any discrepancies
    between the witnesses' accounts of the altercation presented
    -3-                105515
    questions of credibility for the jury, which it resolved by
    finding that defendant had possessed and fired a loaded pistol in
    the midst of a confrontation with two others on a city street.
    According appropriate deference to the jury's credibility
    assessments, we do not find the verdict to be against the weight
    of the evidence (see People v Nelson, 128 AD3d 1225, 1227 [2015];
    People v Butler, 126 AD3d 1122, 1123 [2015], lv denied 25 NY3d
    1199 [2015]; People v Maschio, 117 AD3d 1234, 1236 [2014]).
    Defendant also argues that he was deprived of the effective
    assistance of counsel, primarily due to his trial counsel's
    failure to request that County Court specifically instruct the
    jury that it could, but was not required to, apply the "statutory
    presumption . . . that the element of intent to use [a] firearm
    unlawfully against another may be inferred from . . . possession"
    of a loaded firearm (People v Johnson, 83 AD3d 1130, 1131-1132
    [2011], lv denied 17 NY3d 818 [2011]; see People v Galindo, 23
    NY3d 719, 722-723 [2014]; see also Penal Law § 265.15 [4]). The
    record reveals, however, that County Court adequately
    communicated the permissive nature of the inference by reciting
    the pattern Criminal Jury Instruction nearly verbatim (see
    CJI2d[NY] Penal Law § 265.15 [4]; People v Green, 119 AD3d 23, 30
    [2014], lv denied 23 NY3d 1062 [2014]; People v Wright, 300 AD2d
    419, 419 [2002], lv denied 99 NY2d 621 [2003]; People v Giordano,
    296 AD2d 714, 715 [2002], lv denied 99 NY2d 582 [2003]). The
    court then emphasized that the People had the burden of proving
    each element of the charges beyond a reasonable doubt. Inasmuch
    as the instructions were not misleading or otherwise improper,
    defense counsel was not ineffective for failing to object to
    them.
    Defendant's remaining claims are unpreserved for our
    review, and we perceive no basis to exercise our interest of
    justice jurisdiction (see People v Green, 119 AD3d at 30; People
    v Fauntleroy, 108 AD3d 885, 887 [2013], lv denied 21 NY3d 1073
    [2013]; People v Asai, 66 AD3d 1138, 1140 [2009]; see also CPL
    470.15 [3] [c]; [6] [a]). Nor do we find that counsel was
    ineffective for failing to raise them. Viewing the
    representation as a whole, defense counsel made appropriate
    motions and objections – including requests for Molineux and
    Huntley pretrial hearings – and pursued a viable defense strategy
    -4-                  105515
    focused on inconsistencies in the testimony of the People's
    witnesses, which he effectively highlighted during his opening
    statement, cross-examination of witnesses and summation, thereby
    affording defendant meaningful representation (see People v
    Chappelle, 126 AD3d 1127, 1129 [2015], lv denied 25 NY3d 1161
    [2015]; People v Fauntleroy, 108 AD3d at 887; People v Head, 90
    AD3d 1157, 1159 [2011]).
    McCarthy, J.P., Egan Jr. and Clark, JJ., concur.
    ORDERED that the judgment is affirmed.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 105515

Citation Numbers: 133 A.D.3d 899, 20 N.Y.S.3d 188

Filed Date: 11/5/2015

Precedential Status: Precedential

Modified Date: 1/12/2023