People v. Ellison

Appellate Division of the Supreme Court of New York

People v. Ellison

2017 NY Slip Op 5339, 151 A.D.3d 1905, 59 N.Y.S.3d 216

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 30, 2017

Docket736 KA 15-01453

StatusPublished

Cited by3 cases

This text of 2017 NY Slip Op 5339 (People v. Ellison) 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.

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People v. Ellison, 2017 NY Slip Op 5339, 151 A.D.3d 1905, 59 N.Y.S.3d 216 (N.Y. Ct. App. 2017).

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Appeal from a judgment of the Niagara County Court (Sara Sheldon, J.), rendered August 27, 2015. The judgment convicted defendant, upon a jury verdict, of attempted murder in the second degree, assault in the first degree and criminal possession of a weapon in the second degree.

It is hereby ordered that the judgment so appealed from is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), assault in the first degree (§ 120.10 [1]), and criminal possession of a weapon in the second degree (§ 265.03 [3]). Contrary to defendant’s contention, upon viewing the evidence in the light most favorable to the People, we conclude that the evidence is legally sufficient to establish that he possessed a loaded firearm outside of his home or place of business (see generally People v Danielson, 9 NY3d 342, 349 [2007]; People v Bleakley, 69 NY2d 490, 495 [1987]). Although no weapon was recovered, the victim’s girlfriend testified that she observed the victim standing next to the driver’s side of a vehicle that was occupied only by the driver when she heard three or four gun shots and saw the victim holding his abdomen. The victim’s girlfriend identified [1906]*1906defendant by name twice in the 911 call she made while driving the victim to the hospital, and the recording of that call was admitted in evidence. Furthermore, another witness testified that, while he and defendant were housed at the same correctional facility, defendant admitted to him that he shot the victim in the abdomen at the location where the victim’s girlfriend testified the shooting had occurred. We therefore conclude that there is a valid line of reasoning and permissible inferences to support the conclusion that defendant possessed a loaded firearm outside of his home or place of business (see generally Bleakley, 69 NY2d at 495). We reject defendant’s further contention that County Court erred in directing that the sentence on that count run consecutively to the concurrent terms of imprisonment imposed on the attempted murder and assault counts. The evidence established that defendant’s possession of a loaded firearm outside of his home or place of business was a separate act for sentencing purposes (see People v Brown, 21 NY3d 739, 744-745 [2013]; see also Penal Law § 70.25 [2]).

Contrary to defendant’s further contention, the court properly allowed the People to impeach the credibility of the victim’s girlfriend when she testified that she did not see the driver of the vehicle who shot the victim, which contradicted her grand jury testimony and her sworn statement identifying defendant as the shooter. It is well established that “[e]vidence of a prior contradictory statement may be received for the limited purpose of impeaching the witness’s credibility with respect to his or her testimony . . . [where, as here], the testimony on a ‘material fact’ . . . ‘tend[s] to disprove the party’s position or affirmatively damage [s] the party’s case’ ” (People v Berry, 27 NY3d 10, 17 [2016], rearg dismissed 28 NY3d 1060 [2016]; see CPL 60.35 [1]). We conclude that the testimony of the witness denying that she saw the driver related to a material fact, the identity of the shooter, and affirmatively damaged the People’s case (see Berry, 27 NY3d at 17-18), particularly because the victim did not testify.

Defendant did not object to the court’s failure to give a limiting instruction when the prosecutor impeached the credibility of the witness and thus did not preserve for our review his contention that the court’s failure to give a limiting instruction constitutes reversible error (see CPL 470.05 [2]). In any event, we conclude that the contention is without merit. CPL 60.35 (2) provides that evidence concerning prior contradictory statements may be used only for the purpose of impeaching the credibility of the witness and does not constitute evidence-in-[1907]*1907chief, and it further provides that, “[u]pon receiving such evidence at a jury trial, the court must so instruct the jury.” The court properly charged the jury that the witness’s contradictory statements did not constitute evidence-in-chief and that the jury could consider those statements only for the purpose of assessing her credibility, and thus we conclude that the failure to give a limiting instruction at the time her testimony was impeached does not warrant reversal (see People v Davis, 112 AD2d 722, 724 [1985], lv denied 66 NY2d 918 [1985]).

Finally, the sentence is not unduly harsh or severe.

Whalen, P.J., and DeJoseph, J., concur in the following memorandum.

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Appeal from a judgment of the Niagara County Court (Sara Sheldon, J.), rendered August 27, 2015. The judgment convicted defendant, upon a jury verdict, of attempted murder in the second degree, assault in the first degree and criminal possession of a weapon in the second degree.

It is hereby ordered that the judgment so appealed from is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), assault in the first degree (§ 120.10 [1]), and criminal possession of a weapon in the second degree (§ 265.03 [3]). Contrary to defendant’s contention, upon viewing the evidence in the light most favorable to the People, we conclude that the evidence is legally sufficient to establish that he possessed a loaded firearm outside of his home or place of business (see generally People v Danielson, 9 NY3d 342, 349 [2007]; People v Bleakley, 69 NY2d 490, 495 [1987]). Although no weapon was recovered, the victim’s girlfriend testified that she observed the victim standing next to the driver’s side of a vehicle that was occupied only by the driver when she heard three or four gun shots and saw the victim holding his abdomen. The victim’s girlfriend identified [1906]*1906defendant by name twice in the 911 call she made while driving the victim to the hospital, and the recording of that call was admitted in evidence. Furthermore, another witness testified that, while he and defendant were housed at the same correctional facility, defendant admitted to him that he shot the victim in the abdomen at the location where the victim’s girlfriend testified the shooting had occurred. We therefore conclude that there is a valid line of reasoning and permissible inferences to support the conclusion that defendant possessed a loaded firearm outside of his home or place of business (see generally Bleakley, 69 NY2d at 495). We reject defendant’s further contention that County Court erred in directing that the sentence on that count run consecutively to the concurrent terms of imprisonment imposed on the attempted murder and assault counts. The evidence established that defendant’s possession of a loaded firearm outside of his home or place of business was a separate act for sentencing purposes (see People v Brown, 21 NY3d 739, 744-745 [2013]; see also Penal Law § 70.25 [2]).

Contrary to defendant’s further contention, the court properly allowed the People to impeach the credibility of the victim’s girlfriend when she testified that she did not see the driver of the vehicle who shot the victim, which contradicted her grand jury testimony and her sworn statement identifying defendant as the shooter. It is well established that “[e]vidence of a prior contradictory statement may be received for the limited purpose of impeaching the witness’s credibility with respect to his or her testimony . . . [where, as here], the testimony on a ‘material fact’ . . . ‘tend[s] to disprove the party’s position or affirmatively damage [s] the party’s case’ ” (People v Berry, 27 NY3d 10, 17 [2016], rearg dismissed 28 NY3d 1060 [2016]; see CPL 60.35 [1]). We conclude that the testimony of the witness denying that she saw the driver related to a material fact, the identity of the shooter, and affirmatively damaged the People’s case (see Berry, 27 NY3d at 17-18), particularly because the victim did not testify.

Defendant did not object to the court’s failure to give a limiting instruction when the prosecutor impeached the credibility of the witness and thus did not preserve for our review his contention that the court’s failure to give a limiting instruction constitutes reversible error (see CPL 470.05 [2]). In any event, we conclude that the contention is without merit. CPL 60.35 (2) provides that evidence concerning prior contradictory statements may be used only for the purpose of impeaching the credibility of the witness and does not constitute evidence-in-[1907]*1907chief, and it further provides that, “[u]pon receiving such evidence at a jury trial, the court must so instruct the jury.” The court properly charged the jury that the witness’s contradictory statements did not constitute evidence-in-chief and that the jury could consider those statements only for the purpose of assessing her credibility, and thus we conclude that the failure to give a limiting instruction at the time her testimony was impeached does not warrant reversal (see People v Davis, 112 AD2d 722, 724 [1985], lv denied 66 NY2d 918 [1985]).

Finally, the sentence is not unduly harsh or severe.

Whalen, P.J., and DeJoseph, J., concur in the following memorandum.

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2017 NY Slip Op 5339, 151 A.D.3d 1905, 59 N.Y.S.3d 216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-ellison-nyappdiv-2017.

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