Opinion
06-27-2017
The PEOPLE of the State of New York, Respondent, v. Dominique BOYD, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Samuel E. Steinbock–Pratt of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheryl Feldman of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Samuel E. Steinbock–Pratt of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheryl Feldman of counsel), for respondent.
FRIEDMAN, J.P., WEBBER, GESMER, KERN, JJ.
Judgment, Supreme Court, New York County (Arlene D. Goldberg, J.), rendered July 18, 2014, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree, attempted assault in the first degree, reckless endangerment in the second degree, and two counts of conspiracy in the fourth degree, and sentencing him to an aggregate term of 7 ½ years, unanimously affirmed.
The court providently exercised its discretion in permitting three officers who were familiar with defendant, but were not eyewitnesses, to give lay opinion testimony, as an aid to the jury's identification process, that defendant was the man depicted in surveillance videotapes firing a handgun. This testimony "served to aid the jury in making an independent assessment regarding whether the man in the [videos] was indeed the defendant" ( People v. Russell, 79 N.Y.2d 1024, 1025, 584 N.Y.S.2d 428, 594 N.E.2d 922 [1992] ), because there was "some basis for concluding that the witness[es] [were] more likely to correctly identify the defendant from the [videos] than [was] the jury" ( People v. Sanchez, 95 A.D.3d 241, 249, 941 N.Y.S.2d 599 [1st Dept.2012], affd. 21 N.Y.3d 216, 969 N.Y.S.2d 840, 991 N.E.2d 698 [2013] ). The videos were of marginal quality and the police officers' narration of the videos, as persons familiar with defendant and his personal characteristics, most notably a distinctive manner of walking, was helpful both in identifying him and explaining to the jury the rapid-paced and fleeting images of persons running back and forth in footage drawn from three video cameras depicting three overlapping areas around the scene of the shooting. Furthermore, such testimony is "commonly allowed in cases where the defendant has changed his or her appearance since being photographed or taped, and the witness knew the defendant before that change of appearance" ( People v. Coleman, 78 A.D.3d 457, 458, 910 N.Y.S.2d 69 [1st Dept.2010], lv. denied 16 N.Y.3d 829, 921 N.Y.S.2d 193, 946 N.E.2d 181 [2011] ), and in this case there was some evidence of a change in defendant's appearance. We thus find it unnecessary to decide whether such evidence is an indispensable prerequisite to the admission of the type of testimony at issue. The court also providently exercised its discretion under the circumstances in permitting testimony on this subject from three officers, and defendant's argument regarding cumulativeness is unavailing.
To the extent defendant is making a legal sufficiency claim, it is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). In this case where defendant appears on the above-discussed videos to be firing a pistol, but no weapon was recovered, defendant challenges his weapon possession conviction on the ground that the evidence failed to establish that he fired an operable firearm, loaded with live ammunition. However, there was ample circumstantial evidence in that regard (see People v. Samba, 97 A.D.3d 411, 414, 948 N.Y.S.2d 58 [1st Dept.2012], lv. denied, 20 N.Y.3d 1065, 962 N.Y.S.2d 616, 985 N.E.2d 926 [2013] ). In addition to extensive background information demonstrating that this incident was a gunfight between defendant and a member of a rival gang, the videotape shows a pistol being fired three times, an officer heard gunshots, and the police recovered three cartridge cases at the scene. Defendant's far-fetched hypotheses about his having fired, unwittingly or otherwise, an inoperable pistol or blank cartridges are without merit (see People v. Dixon, 192 A.D.2d 338, 596 N.Y.S.2d 18 [1st Dept.1993], lv. denied 81 N.Y.2d 1013, 600 N.Y.S.2d 201, 616 N.E.2d 858 [1993] ).