MCKOY, CALVIN L., PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1111
KA 09-00151
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND LINDLEY, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
CALVIN L. MCKOY, DEFENDANT-APPELLANT.
MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (SHAWN P. HENNESSY OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered December 17, 2008. The judgment
convicted defendant, upon a jury verdict, of murder in the second
degree (two counts), criminal possession of a weapon in the third
degree, and criminal possession of a weapon in the fourth degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, two counts of murder in the second
degree (Penal Law § 125.25 [2]) for killing two individuals who were
mere bystanders during a gang-related shooting spree in the City of
Buffalo. We reject defendant’s contention that the testimony of the
accomplice who drove the getaway vehicle and detailed defendant’s
involvement in the crime was not adequately corroborated, as required
by CPL 60.22 (1). Indeed, the testimony of the accomplice was amply
corroborated by evidence that, inter alia, defendant was seen cleaning
the gun used in the shooting shortly after it occurred, the same gun
was recovered the day after the shooting from a shed in the back yard
of a home owned by defendant’s grandparents, and defendant made
admissions to three jailhouse informants implicating himself in the
shootings. In addition, although the accomplice’s testimony with
respect to the manner in which the shooting occurred did not directly
link defendant to the shooting, the testimony nevertheless was
consistent with the testimony of disinterested witnesses such that the
jury could be reasonably satisfied that the accomplice was telling the
truth (see People v Reome, 15 NY3d 188, 191-192). Moreover, viewing
the evidence in light of the elements of the crimes as charged to the
jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the
verdict is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495). Finally, we conclude that
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KA 09-00151
Supreme Court’s ruling pursuant to People v Cardona (41 NY2d 333, 335)
was proper, pursuant to which the court allowed the jailhouse
informants to testify concerning defendant’s inculpatory statements.
There was no evidence that the informants were acting as agents of the
government when defendant made the statements (see People v McCray, 66
AD3d 1338, 1339, lv denied 13 NY3d 908, 14 NY3d 803; People v Davis,
38 AD3d 1170, 1171, lv denied 9 NY3d 842, cert denied 552 US 1065).
Entered: December 23, 2011 Frances E. Cafarell
Clerk of the Court