The People, Respondent,v.Darnell Carter, Appellant.

Brief

N.Y.October 16, 2013

To be Argued by: MARY-JEAN BOWMAN, ESQ. Counsel requests 15 minutes COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, vs. DARNELL D. CARTER, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT APPEAL NO. APL-2013-00049 DAVID J. FARRUGIA, Attorney for Defendant-Appellant NIAGARA COUNTY PUBLIC DEFENDER Niagara County Courthouse 175 Hawley Street Lockport, NY 14094 Phone: (716) 439-7071 By: MARY-JEAN BOWMAN, Assistant Public Defender April 16, 2013 TABLE OF AUTHORITIES QUESTION PRESENTED TABLE OF CONTENTS •••••• a .. ... • 0,' . Page 1 2 JURISDICTIONAL STATEMENT SUMMARY OF ARGUMENT STATEMENT OF FACTS ........................................ 3 5 7 POINT I CONCLUSION DARNELL CARTER'S CONSECUTIVE SENTENCES FOR POSSESSION OF A WEAPON AND MURDER IN THE SECOND DEGREE ARE ILLEGAL BECAUSE THE OFFENSES WERE SIMULTANEOUS, PART OF THE SAME TRANSACTION . .............................................................. 11 14 TABLE OF AUTHORITIES STATUTES Criminal Procedure Law section 70.25(2) Criminal Procedure Law section 450.90(1) CASE LAW Page 4, 5, 11 4 State People v. Ahmed (1985) 66 N.Y.2 307 ................. 4 People v. Brown (1992) 80 N. Y. 2d 361 . ............... 11 People v. Fuentes (2008 ) 52 A. D. 3d 1297 · ............ 11 People v. Fuller (1982) 57 N. Y.2d 152 . .............. 4 People v. Hamilton (2005) 4 N.Y.23d 654 · ............ 12 People v. Laureano (1996) 87 N.Y.2d 640 · ............ 11 People v. Ramirez (1996) 89 N.Y. 2d 444 · ............ 11 People v. Tavares (2009) 12 N.Y.3d 21 . .............. 12 1 QUESTION PRESENTED 1. Were the defendant's consecutive sentences for Criminal Possession of a Weapon in the Second Degree and Murder in the Second Degree legal? The court below said no, then reversed their decision and said yes. 2 JURISDICTIONAL STATEMENT By permission of the Honorable Victoria A. Graffeo, Associate Judge of the Court of Appeals, granted February 22, 2013, this appeal is taken from an Order of the Appellate Division, Fourth Department, entered June 15, 2012, as amended November 9, 2012, which affirmed a judgment entered June 17, 2010 in Niagara County Court before the Honorable Sara S. Farkas (formerly Sperrazza), wherein Mr. Carter was convicted after jury trial of one count of Murder in the Second Degree pursuant to New York State Penal Law section 125.25(1) and Article 20; one count of Murder in the Second Degree pursuant to New York State Penal Law section 125.25(3) and Article 20; one count of Robbery in the First Degree in violation of New York State Penal Law section 160.15(3) and Article 20; one count of Robbery in the First Degree in violation of New York State Penal Law section 160.15(4) and Article 20; one count of Criminal Possession of a Weapon in the Second Degree pursuant to New York State Penal Law section 265.03(3) and Article 20; and one count of Criminal Use of a Firearm in the First Degree, in violation of New York State Penal Law section 265.09(1) (b) and Article 20. Mr. Carter was sentenced to an indeterminate term of twenty five (25) years to life in the New York State Department of Corrections on Counts One and Two to run concurrently; twenty five (25) years determinate with five (5) years of post-release supervision on 3 Counts Three and Four running concurrently with Counts One and Two; fifteen (15) years determinate with a term of five (5) years post release supervision on Count Five to run consecutively to Counts 1 through 4; and twenty five (25) years determinate with five (5) years post release supervision on Count Six, to run concurrently with the previous sentences. Pursuant to Criminal Procedure Law section 450.90(1), this Court has jurisdiction to consider this appeal and review the question of law that is raised in this matter - whether Mr. Carter's consecutive sentence for Murder in the Second Degree and Criminal Possession of a weapon in the Second Degree legal is under New York State Penal Law section 70.25(2). While this issue was not raised by counsel either at sentencing or on direct appeal, preservation is not required as this Court cannot allow an illegal sentence to stand. People v. Ahmed, 66 N.Y.2d 307 at 310 (1985), and People v. Fuller, 57 N.Y.2d 152 at 156 (1982). 4 SUMMARY OF ARGUMENT On the night of March 20, 2009, Mr. Carter was hanging out with friends at the apartment of Tierra James, at .... Pierce Avenue in the City of Niagara Falls, New York. The apartment building was owned and occupied by Robert Biggs. Mr. Biggs was also at the apartment building, relaxing with various friends. Mr. Carter and his friends went next door to the Hometown Market and then left the store. At this point, Mr. Biggs also left the apartment building, and witness accounts vary as to what exactly transpired next. Every witness heard gun shots, and Mr. Biggs went down, then got up and kept running. Niagara Falls Police Department Officers were called to a nearby back yard the next morning, where the body of Robert Biggs was found. A blood trail leading back toward the Hometown Market was discovered and documented, along with a videotape which depicted some of the events, but not the actual shooting. Police were eventually able to identify Mr. Carter as the suspect, and he was tried and convicted on all counts. In imposing consecutive sentences for criminal possession of a weapon in the second degree and for murder in the second degree, the court violated the prohibition against consecutive sentences for two or more offenses committed through a single act or omission contained in Penal Law section 70.25(2). 5 This Court should Order Mr. Carter's sentences to run concurrently, or remit this matter for resentencing accordingly. 6 STATEMENT OF FACTS This case arose out of the fatal shooting of Robert Biggs, which occurred in the city of Niagara Falls, New York, on March 20, 2009. Although there is no dispute that Mr. Carter was present that evening, there were significant gaps in the People's proof. On the night of Robert Biggs died, Mr. Carter was socializing with his friends Shanita Chapman, Delvante Griffin, Donald Rodgers, Jamell Chapman, and another person he knew only as "Tyron". The group was relaxing at the apartment of Tierra James, at .... Pierce Avenue in the City of Niagara Falls. The apartment building was owned and occupied by Robert Biggs. Mr. Biggs was in his own apartment with Wayne Payne (also known as "Sonny"), Sicory Walker and Debbie Palmer, smoking weed and playing cards (see: 3/26/10 transcript p. 634 line 22) (AI: Vol. II, 1285). Mr. Carter and his friends went next door to the Hometown Market, talked with some women, and then left the store. At this point, Ms. Walker says she and Mr. Biggs were getting into his car to go to the liquor store (see: 3/25/10 transcript p. 422) (A: Vol. II, 1072) when "all four of the dudes was running behind him (Biggs) (see: 3/25/10 transcript p. 423 line 6) (A: Vol. II, 1073) while other witnesses say Mr. Biggs was on the porch when a "group of boys went running past" (see: 3/25/10 Iparenthetical references to "All are to Mr. Carter's Appendix. 7 transcript p. 497 line 9-10) (A: Vol. II, 1147). Every witness testified to hearing gun shots. Mr. Biggs went down, got up and kept running (see: 3/26/10 transcript p. 667, line 18-23) (A: Vol. II, 1318). The body of Robert Biggs was found the next morning in the backyard of a nearby horne. The police observed and photographed a blood trail leading from Mr. Biggs back to the Hometown Market. (see: 3/25/10 transcript p. 592, lines 1-6) (A: Vol. II, 1243). During the investigation, witnesses described the shooter as the one "wearing a bandana" (see: 3/26/10 transcript p. 625 lines 2, 18) (A: Vol. 1276); and the "first boy in line, wearing purple, with a black and white scarf" (see: 3/25/10 transcript p. 500) (A: Vol. II, 1150). Police secured a videotape from the Hometown Market, and were able to eventually identify Mr. Carter as the suspect. Mr. Carter was arrested without incident by Captain William Thomson. Mr. Carter gave the police a statement admitting that he was present and had a gun in his waistband that night, but stated that someone else took the gun and fired it. (see: 3/26/10 transcript p. 665, line 14-25) (A: Vol. II, 1316). Mr. Carter was arraigned on May 29, 2009, and entered a not guilty plea. Several Motions and pre-trial conferences were held, and the case proceeded to trial on March 22, 2010. There 8 were conflicting versions of events from the various witnesses, and there was only circumstantial evidence that a robbery had occurred. Tierra James testified that she saw a group of boys running after Robert Biggs but "couldn't tell who it was" (see: 3/24/10 transcript p. 406, line 23) (A: Vol. II, 1056). Sicory Walker said that she saw "a line of guys, one behind the other, one pointing a gun at Mr. Biggs", and was not sure if it was three or four boys (see: 3/25/10 transcript, p. 447, line 7) (A: Vol. II, 1097) and that she "didn't recognize anyone" (see: 3/25/10 transcript p. 447, line 12) (A: Vol. II, 1097). Shenkay1a Hollifield testified that Mr. Carter had a scarf over his face and that she saw a silver gun in his hand, then later testified that the person with the gun "had a bandana on" (see: 3/26/10 transcript p. 625, lines 2, 18) (A: Vol. II, 1276). Mr. Carter himself took the witness stand during trial and told the jury that Jamell Chapman fired the gun (see: 3/29/10 transcript p. 738, lines 2-3) (A: Vol. II, 1390). The videotape from the Hometown Market was shown several times, but did not show the actual shooting as it occurred outside of camera range, and there was no testimony from any witness about any Robbery of Mr. Biggs. The trial culminated with Mr. Carter being found guilty as charged. Defendant - Appellant was sentenced on June 17, 2010 to an indeterminate term of twenty five (25) years to life in the 9 New York State Department of Corrections on Counts One and Two to run concurrently; twenty five (25) years determinate with five (5) years of post-release supervision on Counts Three and Four running concurrently with Counts One and Two; fifteen (15) years determinate with a term of five (5) years post release supervision on Count Five to run consecutively to Counts One through Four; and twenty five (25) years determinate with five (5) years post release supervision on Count Six, to run concurrently with the other sentences. On appeal, the Appellate Division, Fourth Department, modified his sentence stating that the sentences for Murder in the Second Degree and Criminal Possession of a Weapon could not be consecutive. Upon reargument, the Appellate Division affirmed the sentence by Order dated November 9, 2012. Mr. Carter now appeals his conviction and sentence. 10 POINT I DARNELL CARTER'S CONSECUTIVE SENT8NCES FOR POSSESSION OF A WEAPON AND MURDER IN THE SECOND DEGREE ARE ILLEGAL BECAUSE THE OFFENSES WERE SIMULTANEOUS AND PART OF THE SAME TRANSACTION. New York State Penal Law section 70.25(2) states that 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.... must run concurrently. In People v. Fuentes, 52 A.D.3d 1297 [2008], the court found that, ~as a general rule, consecutive sentences are permissible if either the elements of the crimes do not overlap or if the facts demonstrate that the defendant's acts underlying the crimes are separate and distinct" (quoting People v. Ramirez, 89 N.Y. 2d 444 [1996] and People v. Laureano, 87 N.Y.2d 640 [1996]). In People v. Brown [1992] 80 N.Y.2d 361, this Court said the question is whether or not the acts are "distinguishable by cUlpable mental state, nature and manner of use, time, place and victim" id. At 365. In this case, there is no question that the possession of the weapon and the resultant murder involved the same victim, time, place and manner of use as every witness heard gun shots, and then Mr. Biggs went down, got up and kept running (see: 3/26/10 transcript p. 667, line 18-23) (A: Vol. II, 1318). Simply put, in this case there is one act, one event, and one victim. No proof of operability of the firearm was presented at 11 trial other than the fact of the gun firing when Mr. Biggs was fatally shot. Proving that the offenses are separate and distinct is the People's burden (see: People v. Taveras [2009) 12 N.Y.3d 21, at 25) . Here, the People provided no proof of any separate act that would justify consecutive sentences. The shooting which resulted in Mr. Biggs' death was one act - there were no other victims, and no evidence that Mr. Carter brandished the gun or harmed anyone else with the gun. In fact, the People themselves made no argument in either their closing argument as to ~counts five and six, the Judge is going to instruct you on those. They'll be pretty self-explanatory. I don't think I need to make any comments on themH (see: 3/31/2010 transcript p. 980, line 5) (A: Vol. II, 1633) or at sentencing, other than to request the maximum term, (see: 6/17/10 transcript p. 7, line 25) (A: Vol. II, 1725). The Prosecution made no mention of any separate acts by Mr. Carter to support consecutive sentences nor did they specifically request consecutive sentences. In People v. Hamilton [2005] 4 N.Y.23d 654, the court reversed consecutive sentences for manslaughter and possession of a weapon where, as in this case, there was no proof of separate intent to use the gun unlawfully. Id. at 658 and then explained further that where ~the weapon possession was not separate and distinct from the shooting...the statute prohibits Consecutive 12 sentences" id. at 659. Thus, Mr. Carter is entitled to have his sentence modified as there was absolutely no proof of any separate act or intent put forth by the prosecution. There is no evidence to support the prosecution argument that Mr. Carter set out with the intention to rob Mr. Biggs. Although the body of Mr. Biggs was found the next day with pockets turned out and devoid of jewelry and personal effects, no one testified to any acts on the part of Mr. Carter in robbing the victim. No witness testified to seeing Mr. Carter following Mr. Biggs or anywhere near the body of Mr. Biggs, nor taking anything from Mr. Biggs. Based upon the foregoing, it is respectfully urged that this Court exercise its discretion and return the matter for resentencing or modify the defendant's sentence. 13 CONCLUSION The Defendant-Appellant's sentence is illegal. It is respectfully urged that this Court in the interest of justice and in the exercise of discretion should modify the sentence of the Defendant-Appellant, or remit the matter for resentencing for the reasons set forth above. Dated: April 16, 2013 Respectfully submitted, Defender MAN, Assistant Public Def der, of Counsel Attorney for Defendant-Appellant Niagara County Courthouse 175 Hawley Street Lockport, NY 14094 Phone: (716) 439-7071 14