People v. Thompkins , 20 N.Y.S.3d 188 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 5, 2015 105515
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
LAMAR A. THOMPKINS,
Appellant.
________________________________
Calendar Date: September 8, 2015
Before: McCarthy, J.P., Egan Jr., Rose and Clark, JJ.
__________
Benjamin K. Bergman, Binghamton, for appellant, and
appellant pro se.
Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-
Ulacco of counsel), for respondent.
__________
Rose, J.
Appeal from a judgment of the County Court of Chemung
County (Hayden, J.), rendered August 24, 2012, upon a verdict
convicting defendant of the crime of criminal possession of a
weapon in the second degree (two counts).
Defendant was charged with two counts of criminal
possession of a weapon in the second degree after an altercation
occurred in which two men armed with bricks and a club confronted
a third man who brandished and discharged a pistol, sending the
other two running. After a jury trial, which focused on the
issue of the identification of the shooter, defendant was
convicted as charged. This appeal ensued.
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We cannot agree with defendant's claim that the jury's
verdict was against the weight of the evidence. At trial, the
People presented the testimony of four witnesses who observed the
altercation from different vantage points. The first eyewitness
observed the encounter between the three men from his second
floor apartment window, where he captured a portion of what
transpired on video. This witness observed and filmed two men –
one armed with a brick and the other armed with a piece of lumber
– advancing on the third man. As all three moved out of the
witness's line of sight, he heard a gunshot and then saw the two
formerly armed men run back down the street in the opposite
direction. Moments later, the third man reappeared in the
witness's field of view, at which point he could see that the
third man was holding a gun. While the witness was able to give
a general description of all three men, he was not able to
identify defendant as the third man. The People also called as
witnesses the other two men involved in the altercation. They
unequivocally confirmed that defendant was the third man
involved, although they claimed that he had not possessed a
firearm and they professed not to know who had fired the shot
that caused them to run away.
The People's fourth eyewitness was inside his nearby home
when he heard an escalating argument taking place on the street.
When he stepped outside to see what was going on, he got "a good
look" at defendant and observed that he was holding a handgun.
This witness then watched as two men armed with bricks charged at
defendant, who responded by brandishing his pistol and firing it.
Later that day, a police investigator showed the witness a photo
array of six color photographs, but he was initially unable to
identify defendant. The investigator then handed him a black and
white photocopy of the same array and, upon observing it, the
witness identified defendant, stating that he was 80% certain of
his choice. At trial, this witness unequivocally identified
defendant as the shooter and blamed his earlier lack of complete
certainty on the fact that defendant looked much younger in the
picture in the photo array.
In light of the foregoing testimony, a different verdict
would not have been unreasonable. However, any discrepancies
between the witnesses' accounts of the altercation presented
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questions of credibility for the jury, which it resolved by
finding that defendant had possessed and fired a loaded pistol in
the midst of a confrontation with two others on a city street.
According appropriate deference to the jury's credibility
assessments, we do not find the verdict to be against the weight
of the evidence (see People v Nelson, 128 AD3d 1225, 1227 [2015];
People v Butler, 126 AD3d 1122, 1123 [2015], lv denied 25 NY3d
1199 [2015]; People v Maschio, 117 AD3d 1234, 1236 [2014]).
Defendant also argues that he was deprived of the effective
assistance of counsel, primarily due to his trial counsel's
failure to request that County Court specifically instruct the
jury that it could, but was not required to, apply the "statutory
presumption . . . that the element of intent to use [a] firearm
unlawfully against another may be inferred from . . . possession"
of a loaded firearm (People v Johnson, 83 AD3d 1130, 1131-1132
[2011], lv denied 17 NY3d 818 [2011]; see People v Galindo, 23
NY3d 719, 722-723 [2014]; see also Penal Law § 265.15 [4]). The
record reveals, however, that County Court adequately
communicated the permissive nature of the inference by reciting
the pattern Criminal Jury Instruction nearly verbatim (see
CJI2d[NY] Penal Law § 265.15 [4]; People v Green, 119 AD3d 23, 30
[2014], lv denied 23 NY3d 1062 [2014]; People v Wright, 300 AD2d
419, 419 [2002], lv denied 99 NY2d 621 [2003]; People v Giordano,
296 AD2d 714, 715 [2002], lv denied 99 NY2d 582 [2003]). The
court then emphasized that the People had the burden of proving
each element of the charges beyond a reasonable doubt. Inasmuch
as the instructions were not misleading or otherwise improper,
defense counsel was not ineffective for failing to object to
them.
Defendant's remaining claims are unpreserved for our
review, and we perceive no basis to exercise our interest of
justice jurisdiction (see People v Green, 119 AD3d at 30; People
v Fauntleroy, 108 AD3d 885, 887 [2013], lv denied 21 NY3d 1073
[2013]; People v Asai, 66 AD3d 1138, 1140 [2009]; see also CPL
470.15 [3] [c]; [6] [a]). Nor do we find that counsel was
ineffective for failing to raise them. Viewing the
representation as a whole, defense counsel made appropriate
motions and objections – including requests for Molineux and
Huntley pretrial hearings – and pursued a viable defense strategy
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focused on inconsistencies in the testimony of the People's
witnesses, which he effectively highlighted during his opening
statement, cross-examination of witnesses and summation, thereby
affording defendant meaningful representation (see People v
Chappelle, 126 AD3d 1127, 1129 [2015], lv denied 25 NY3d 1161
[2015]; People v Fauntleroy, 108 AD3d at 887; People v Head, 90
AD3d 1157, 1159 [2011]).
McCarthy, J.P., Egan Jr. and Clark, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court