The People, Respondent,v.Darnell Carter, Appellant.BriefN.Y.October 16, 2013To be Argued by: THOMAS H. BRANDT, ESQ. (Estimated Time: 15 minutes) STATE OF NEW YORK COURT OF APPEALS ---+--- THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DARNELL D. CARTER, Appellan t-Defendant. RESPONDENT'S BRIEF NIAGARA COUNTY INDICTMENT NO. 2009-152 APPEAL NO. APL-2013-00049 THOMAS H. BRANDT, ESQ. OFCOUNSjiJL Dated: June 5, 2013 MICHAEL J. VIOLANTE NIAGARA COUNTY DISTRICT ATTORNEY NIAGARA COUNTY COURTHOUSE LOCKPORT, NEW YORK 14094 (716) 439-7085 Table of Contents Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1 Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Question Presented ......................................... 3 Statement of Facts ......................................... 4 Point I Defendant's Consecutive Sentences Were Legal .............. 8 Conclusion ............................................... 21 Table of Authorities Cases People v Almodovar, 62 NY2d 126 [1984] ...................... 17 People v Bernier. 204 AD2d 732 [2d Dept 1994], Iv denied 84 NY2d 822 ..................................... 20 People v Hall, 309 AD3d 511 [pt Dept 2003], Iv denied 1 NY3d 572 ...................................... 20 People v Hamilton, 4 NY3d 654 [2005] ......................... 15 People v Laureano, 87 NY2d 640 [1996] ........................ 12 People v Manor, 38 AD3d 1257 [4th Dept 2007], Iv denied 9 NY3d 847 ...................................... 20 People v Rivenburgh, 1 AD3d 696 [3d Dept 2003], Iv denied 1 NY3d 579 ...................................... 20 People v Salcedo, 92 NY2d 1019 [1998] ........................ 19 People v Saunders, 85 NY2d 339 [1995] ........................ 17 People v Sturkey, 77 NY2d 979 [1991] ......................... 15 People v Wright, 19 NY3d 349 [2012] .......................... 13 Statutes Penal Law 70.02 .......................................... 19 Penal Law 70.25(2) ............................. 8,9,10,12,13,14 Penal Law 125.25(1) 8,9,10,18 Penal Law 125.25(3) ................................. 8,9,10,18 Penal Law 155.05(1) ....................................... 18 Penal Law 265.02(4)[2006] .................................. 11 Penal Law 265.02(4)[1988] .................................. 15 Penal Law 265.03 ...................................... 10,11 Penal Law 265.03(3)[2009] ............................... 8,9,11 -11- Brief For Respondent Preliminary Statement APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered November 9, 2012. The Appellate Division affirmed the sentence of the Niagara County Court (Sara S. Farkas [formerly Sperrazza], J .), imposed following defendant's conviction, upon a jl,lry verdict, of murder in the second degree (two counts), robbery in the first degree (two counts), criminal possession of a weapon in the second degree, and criminal use of a firearm in the first degree. The County Court had sentenced defendant to a prison term of 25 years to life upon each murder in the second degree conviction, concurrent to each other; 25 years upon each robbery in the first degree conviction, concurrent to each other and to all other sentences; 25 years upon the criminal use of a firearm in the first degree conviction, concurrent to all sentences; and 15 years upon the criminal possession of a weapon in the second degree conviction, consecutive to the murder in the second degree sentences and concurrent to all other sentences. Defendant is currently -1- incarcerated pursuant to the court's judgment. -2- Question Presented Did the trial court lawfully impose consecutive sentences for defendant's simple possession of a weapon and murder convictions where the trial evidence proved that defendant knowingly placed a loaded gun inside of his pants immediately before entering a convenience store and, shortly thereafter, left the store and stalked, confronted, shot, chased, robbed and killed the victim who was never in the store? The lower courts said yes. -3- Statement of Facts On the evening of March 20,2009, defendant, who was 23, and his friends were partying at an apartment in Niagara Falls. The apartment was located in a multi-unit apartment building (hereinafter referred to as the "Apartment Building") owned and occupied by the victim, Robert Briggs (hereinafter referred to as the "victim"). Immediately next to the Apartment Building was a common parking lot shared with a convenience store called the Hometown Market (defendant's appendix at 1066, 1069, 1375). That same evening, the victim went on a date with a woman named Sicory Walker. The pair left the victim's apartment in the Apartment Building and walked to the victim's car, a Lexus, which was parked in the parking lot next to the Hometown Market. As they were getting into the car, Ms. Walker saw several "kids" creeping in a line against the wall of the Hometown Market. She saw the first one in the line, who had something covering the bottom part of his face, point a gun at the victim. She saw the victim run away and around the corner, heard several pops, and saw the individuals run after the victim (defendant's appendix at -4- 1071-1074). Shenkayla Hollifield testified that on the night of the robbery/murder, she was in the Hometown Market with her female cousin, Tierra J ames, and a girlfriend, Shanita Chapman. Defendant approached the three women and began talking. Tierra James told Hollifield not to talk to defendant because defendant was the father of Hollifield's cousin's baby (defendant's appendix at 1236). Defendant was wearing purple, including a purple and white checkered scarf tied around his neck. There were several other men in the store with defendant (defendant's appendix at 1239). The three women left the store and were walking through the parking lot when Hollifield saw defendant and the two other men that he was with in the store run along the side of the building (defendant's appendix at 1238-1239). The men were in a line and were crouching down and running between the building and the cars. Defendant was the first in line and had his scarf pulled over his face as he ran towards the front of the building (defendant's appendix at 1239, 1248). Hollifield saw a silver handgun in defendant's hand, and as she started to run, she heard -5- three shots (defendant's appendix at 1240-1241). The three women jumped into Hollifield's cousin's car. The trio drove from the parking lot around the corner up Pierce Avenue, down 17th Street and onto Whitney Avenue. As she was driving on Whitney Avenue, Hollifield saw the same individuals that were in the store, and in the parking lot, including defendant, running across the street (defendant's appendix at 1241-1242). At trial, Hollifield identified defendant as the person she had been introduced to at the Hometown Market. She also reviewed a surveillance video taken from the inside and outside of the Hometown Market on the night of the incident and identified defendant on the video as being both inside and outside the Market immediately before the shots (defendant's appendix at 1243-1244, 1250; People's Exhibit 2). Defendant gave a statement to the police. Defendant admitted that "they gave [the gun] to me just before we went in the store, they wanted me to hold it." "[H]e had the gun tucked in the waistband of his pants and ... somebody took the gun ... out of his waistband and that they had fired the gun" (defendant's appendix at 1316). Defendant told the police that "he didn't go there to rob the guy, but they were going to rob him, and -6- they were going to take everything he had." According to defendant, he went along "because he thought that they needed him if there was going to be a fight" (defendant's appendix at 1317). The jury convicted defendant of, inter alia, intentional murder, felony murder, and criminal possession of a weapon in the second degree. -7- POINT I Defendant's Consecutive Sentences Were Legal Procedural History County Court imposed, inter alia, two concurrent 25 years to life sentences on defendant for his murder in the second degree convictions (PL 125.25 [1] and 125.25 [3]), and a consecutive sentence of 15 years on his criminal possession of a weapon in the second degree conviction (PL 265.03 [3]). In its original memorandum and order, the Appellate Division, Fourth Department, sua sponte, declared defendant's sentences illegal and imposed concurrent sentences (96 AD3d 1520 [2012]). According to the Appellate Division, the sentences were illegal because: "pursuant to Penal Law § 70.25 (2), when more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, the sentences, with an exception not relevant here, must run concurrently. Based on the evidence presented at trial, the court has no discretion; concurrent sentences are mandated. Here, there was no evidence of intended use of the weapon against another apart from its use in the killing of the murder victim"