VELAZQUEZ, JR., LUIS A., PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1078
KA 07-01569
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
LUIS A. VELAZQUEZ, JR., DEFENDANT-APPELLANT.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (DONALD M. THOMPSON
OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered June 8, 2007. The judgment convicted defendant,
upon a jury verdict, of murder in the second degree, criminal
possession of a weapon in the second degree and criminal possession of
a weapon in the third degree (two counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon a jury trial of murder in the second degree (Penal Law § 125.25
[1]), criminal possession of a weapon in the second degree (§ 265.03
[3]), and two counts of criminal possession of a weapon in the third
degree (§ 265.02 [1], [former (4)]). Defendant failed to preserve for
our review his contention that County Court erred in submitting to the
deliberating jury, upon its request, a written portion of the court’s
final instructions (see CPL 470.05 [2]; People v Williams, 8 AD3d 963,
964, lv denied 3 NY3d 683, cert denied 543 US 1070), and we reject
defendant’s contention that the court thereby committed a “mode of
proceedings error” such that preservation is not required (see
generally People v Becoats, 17 NY3d 643, 650-651, cert denied ___ US
___, 132 S Ct 1970; People v Mehmedi, 69 NY2d 759, 760, rearg denied
69 NY2d 985).
In any event, we conclude that defendant’s contention lacks
merit. The jury sent a note to the court requesting “the description
of each count and the law that applies to the count.” The court
discussed the note with counsel outside the presence of the jury, and
both defense counsel and the prosecutor consented to the submission,
in writing, of the court’s “charges on the five indicted counts”
should the jury make such a request. After the court clarified the
jury’s request through the foreperson, the court provided the written
-2- 1078
KA 07-01569
portion of the charge to the jury, with defendant’s consent. That was
a proper response to the jury’s request (see People v Owens, 69 NY2d
585, 590-591; see also People v Martell, 91 NY2d 782, 785-786; People
v Johnson, 81 NY2d 980, 981-982).
Defendant further contends that the court erred in failing to
poll the jury on the issue whether they wanted the charges orally re-
read or submitted to them in writing, rather than relying on the
foreperson’s statement that the jury preferred to have the charges in
writing. Because defendant did not object to the court’s reliance on
the foreperson’s statement or request that the jury be polled, his
contention is not preserved for our review (see CPL 470.05 [2]). Even
if defendant objected, however, we perceive no abuse of discretion by
the court in relying upon the foreperson’s statement (see People v
Jones, 52 AD3d 1252, 1252, lv denied 11 NY3d 738), inasmuch as the
foreperson acts as the “jury’s spokesperson” (People v Burgess, 280
AD2d 264, 265, lv denied 96 NY2d 798). We note that the foreperson’s
statement that the jury wished to receive the court’s charge in
writing was made in open court, in the presence of the entire jury,
and the record does not reflect that any of the jurors expressed
disagreement with the foreperson’s statement.
We also reject defendant’s contention that the conviction of
intentional murder and criminal possession of a weapon in the second
degree is not supported by legally sufficient evidence. A conviction
is supported by legally sufficient evidence when, viewing the facts in
the light most favorable to the People, “ ‘there is a valid line of
reasoning and permissible inferences from which a rational jury could
have found the elements of the crime proved beyond a reasonable
doubt’ ” (People v Danielson, 9 NY3d 342, 349; see generally People v
Bleakley, 69 NY2d 490, 495). A witness who knew defendant testified
that she saw him standing over the bleeding victim, gun in hand,
almost immediately after the shots were fired. When that witness told
defendant that she was going to call the police, defendant pointed the
gun at her before he fled. Defendant’s subsequent flight to
Massachusetts is evidence of consciousness of guilt and further
supports the jury’s finding of guilt (see generally People v Yazum, 13
NY2d 302, 304-305, rearg denied 15 NY2d 679). Finally, the fact that
the victim was shot in the head, neck and chest, and that several
shots were fired from close range, established the intent to kill
element of murder in the second degree. We further conclude that,
viewing the evidence in light of the elements of the crimes of
intentional murder and criminal possession of a weapon in the second
degree as charged to the jury (see Danielson, 9 NY3d at 349), the
verdict is not against the weight of the evidence with respect to
those crimes (see generally Bleakley, 69 NY2d at 495).
We have reviewed defendant’s remaining contentions and conclude
that they lack merit.
Entered: November 16, 2012 Frances E. Cafarell
Clerk of the Court