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Appellant Challenges Murder Charge


People v. J

2018 NY Slip Op 05692

August 8, 2018

This is an appeal by the defendant from a Supreme Court Decision made in Kings County, convicting the defendant of second-degree murder and second-degree illegal possession of a weapon. The court affirmed.

In 1992, a group of teenagers opened fire on another group of teenagers in a courtyard of a housing project. The victim, Ambrose Roberts was killed. Another teenager was shot in the leg and testified that the defendant and another co-defendant were the shooters. They were charged and convicted of second-degree murder and second-degree illegal possession of a weapon.

The defendant’s contention that the evidence was insufficient for a second-degree murder conviction under PL 125.25 [1] and under criminal possession of a weapon under PL 265.03 [1] were deemed unpreserved (CPL 470.05[2], People v Williams 124 AD3d 920, 921). By viewing the evidence most advantageous to the People (People v Calabra 31 NY3d 80, 81-82) the court finds that the evidence was sufficient to establish that the defendant shot the loaded gun with intent to cause death (People v Williams 124 AD3d 921). In an independent review of the weight of the evidence (CPL 470.15 [5]), the court felt that both counts were not against the weight of the evidence (People v Romero 7 NY3d 633).

The defendant argued that the Supreme Court committed an error by instructing the jury in the transferred intent and inadequately discussed intent and accessional liability, however these issues weren’t preserved for appellate review (CPL 470.05[2]). This argument is without merit.

The defendant was charged with violating PL 125.25(1). This law provides that the defendant is guilty of second-degree murder when, with the intent to cause death, he or she causes death of that person or a third person. In this case the jury instruction of transferred intent is appropriate (People v Wells 7 NY3d 51).

Regarding the recharge, while not artfully presented, viewing it in the context of the supplemental instruction, the court ultimately used the correct legal standards (People v Simmons 15 NY3d 728).

The defendant challenged remarks made by the People during summation, however, they are deemed unpreserved for appeal (CPL 470.05[2]. The court said that these challenged provisions were fair (People v. Rudenko 151 AD3d 1084) to the defense summation and don’t need to be reversed (People v Galloway 54 NY2d 396).

The court ruled that the defendant’s challenge regarding the alleged Baston issues (Baston v. Kentucky 476 US 79) is without merit.

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