People v. Demand

268 A.D.2d 901, 702 N.Y.S.2d 441, 2000 N.Y. App. Div. LEXIS 839
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJanuary 27, 2000
StatusPublished
Cited by11 cases

This text of 268 A.D.2d 901 (People v. Demand) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Demand, 268 A.D.2d 901, 702 N.Y.S.2d 441, 2000 N.Y. App. Div. LEXIS 839 (N.Y. Ct. App. 2000).

Opinion

Spain, J.

Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered February 20, 1997, upon a verdict convicting defendant of the crimes of murder in the second degree and criminal possession of a weapon in the second degree.

Following a jury trial, defendant was convicted of depraved indifference murder (Penal Law § 125.25 [2]) and criminal possession of a weapon in the second degree (Penal Law § 265.03). County Court sentenced defendant to concurrent terms of imprisonment, the longest of which is 25 years to life. The convictions stem from a street fight in the City of Schenectady, Schenectady County, on April 15, 1996 in which defendant was involved. During the altercation an observing bystander, Howard Wilson, was struck and killed by a stray bullet.

Prior to and at the trial, the various participants in and eyewitnesses to the fight gave conflicting accounts of what they observed and what transpired, including whether defendant possessed and displayed a gun. The trial testimony established that the incident was triggered when one girl (Tammy Smith), in the company of defendant’s then-girlfriend (Sherita Sayres) and a third girl (Tysheka Martin), approached the car of another girl (Jessica Drumgold) and hit or kicked the window. Drumgold’s then-boyfriend, Jay Young, observed this from his nearby apartment and went outside along with several other people, including his cousin Shawn Young, and a fight broke out in which, inter alla, Jay Young hit Sayres. Thereafter, a fight ensued between the Youngs and defendant during which, the prosecution maintained, defendant broke loose, pulled out a gun, the Youngs fled and defendant fired in their direction, fatally hitting the victim who was watching the fight. The Youngs and Drumgold left the scene in her Ford Tempo automobile. The gun was apparently never recovered. On defendant’s appeal, we affirm.

Defendant’s first two arguments on appeal focus on the admissibility of an oral statement given to police by a bystander, Yosef Mohamed, and whether his oral and written statements were timely disclosed to defendant. On the first point, Mohamed approached the second Schenectady police officer to arrive at the scene and told him that the shooter had left in a Ford Tempo headed down the street on which the shooting occurred, toward downtown. Upon our review, we find [902]*902no error in County Court’s exclusion of this hearsay statement from evidence at trial, notwithstanding defendant’s contention that it qualified for admission as a statement of the witness’s present sense impression.

This hearsay exception is available when a statement “describes or explains an event or condition and was ‘made while the declarant was perceiving the event or condition or immediately thereafter’ ” (People v Vasquez, 88 NY2d 561, 575, quoting People v Brown, 80 NY2d 729, 732; see, People v Buie, 86 NY2d 501). While “the description and the event need not be precisely simultaneous”, the description must be made “ ‘substantially contemporaneously’ ” with the observation and will not qualify where it is made “after the event being described has concluded” (People v Vasquez, supra, at 575; see, People v Brown, supra, at 734). County Court properly denied defendant’s request to introduce this oral hearsay statement under- this exception because the testimony established that it was not made while the witness-declarant was observing the event or immediately thereafter but, rather, was made at the very least seven minutes after it was over. Thus, the statement was not made “substantially contemporaneously” with the observation but, rather, was made after time for reflection and with the opportunity for a calculated misstatement and, as such, was inadmissible hearsay (see, People v Vasquez, supra, at 574-575; see also, People v Dalton, 88 NY2d 561; People v Brown, supra, at 733; cf., People v Buie, supra, at 508).

On the second point, defendant claims that he is entitled to a new trial based upon the People’s failure to timely disclose Mohamed’s oral statement and his written statement that after he heard gunshots, one of the people he observed fleeing the scene of the fight in the Ford Tempo had a gun. While these statements undoubtedly qualify as exculpatory material—in that they support defendant’s theory that someone other than him, namely the Youngs, possessed a gun—and the prosecution had a duty to disclose them, the timing of their disclosure did not deprive defendant of a fair trial (see, People v Cortijo, 70 NY2d 868, 869-870; People v Tessitore, 178 AD2d 763, 764, lv denied 79 NY2d 1008; see also, Brady v Maryland, 373 US 83).

Although the People did not provide the written statement to the defense until August 1996, this was nonetheless nearly five months prior to trial. The People supplied the two police officers’ accounts of the witness’s oral statement the night before opening statements. The defense called Mohamed as a witness at trial, extensively questioning him regarding his [903]*903observations immediately after the shooting. When the witness essentially, in part, recanted—by testifying that he did not ever see a gun—defense counsel impeached him with his written statement in which he had stated that he had observed one of the fleeing individuals attempt to hand the gun to another person while running from the scene to the car. Since defendant was given a meaningful opportunity—and did so at length—to use this witness’s exculpatory written statement at trial to impeach this witness (see, CPL 60.35), we conclude that defendant’s constitutional right to a fair trial was not violated by the delay in the disclosure of this written statement (see, People v Cortijo, supra, at 870; People v Brown, 67 NY2d 555, 559, cert denied 479 US 1093; People v Tessitore, supra, at 763-764; see also, People v Wong, 256 AD2d 724, lv denied 93 NY2d 903; People v Vecchio, 240 AD2d 854; People v Duffy, 206 AD2d 679, 680, lv denied 84 NY2d 907; cf., People v Wright, 86 NY2d 591, 596-598; People v Vilardi, 76 NY2d 67, 70-71, 78).

Regarding the People’s belated disclosure—on the eve of trial—of Mohamed’s at-the-scene oral statement, we agree with County Court’s ruling that there is no “reasonable possibility” that the late disclosure contributed to the verdict or in any material manner harmed defendant’s case (see, People v Vilardi, supra, at 77-78 [complete failure to disclose standard]; see also, People v Scott, 88 NY2d 888, 890; People v Longtin, 245 AD2d 807, 810, affd 92 NY2d 640, cert denied 526 US 1114). As the court noted, the relevant substance of the oral statement was contained in the written statement with which the witnessdeclarant was fully impeached by defense counsel at trial. Indeed, defendant has not convincingly demonstrated how earlier disclosure of the oral statement might have affected the theory of his defense—that he was not the shooter and did not possess a gun—or defense counsel’s pursuit of other corroborative evidence or the witness’s willingness to testify at trial on defendant’s behalf.

Next, we are not persuaded by defendant’s contention that the verdict was against the weight of the evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
268 A.D.2d 901, 702 N.Y.S.2d 441, 2000 N.Y. App. Div. LEXIS 839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-demand-nyappdiv-2000.