People v. Wells , 35 N.Y.S.3d 795 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 28, 2016 106114
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
JAMES WELLS, Also Known as HO,
Also Known as EIGHTCHO,
Appellant.
________________________________
Calendar Date: May 23, 2016
Before: Garry, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.
__________
Matthew C. Hug, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H.
Willis of counsel), for respondent.
__________
Garry, J.
Appeal from a judgment of the Supreme Court (Coccoma, J.),
rendered June 20, 2013 in Schenectady County, upon a verdict
convicting defendant of the crimes of murder in the second
degree, criminal possession of a weapon in the second degree (two
counts), criminal possession of a weapon in the third degree (two
counts), reckless endangerment in the first degree, unlawful
imprisonment in the first degree, tampering with physical
evidence and endangering the welfare of a child (three counts).
In June 2011, defendant, then 31 years old, attended a
party in the City of Schenectady, Schenectady County, together
with several other adult males. The majority of the large group
of partygoers were teenagers. Upon discovering that car keys
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belonging to a vehicle rented by one of defendant's companions
had disappeared, defendant and his companions interrupted the
party and began to physically search the guests for the missing
keys before allowing them to leave. Some of the guests objected.
An altercation ensued, in which the 15-year-old victim was shot
and killed.
Defendant was arrested and charged with the crimes of
murder in the second degree, criminal possession of a weapon in
the second degree (two counts), criminal possession of a weapon
in the third degree (two counts), reckless endangerment in the
first degree, unlawful imprisonment in the first degree,
tampering with physical evidence and endangering the welfare of a
child (three counts). Defendant's pretrial omnibus motion
sought, as pertinent here, to suppress identification testimony
and to sever three counts of the indictment. County Court
(Drago, J.) denied the motion to sever and, following a combined
Wade/Huntley hearing, denied defendant's motion to suppress
identification testimony. Following a jury trial, defendant was
convicted as charged. Supreme Court (Coccoma, J.) denied
defendant's CPL 330.30 motion to set aside the verdict and
sentenced him, as a second felony offender, to an aggregate
prison term of 30½ years to life, to be followed by five years of
postrelease supervision. Defendant appeals.
Initially, we reject defendant's assertion that the charge
of reckless endangerment in the first degree was duplicitous.1
An indictment count is void for duplicity when it charges more
than one offense (see CPL 200.30 [1]; People v Alonzo, 16 NY3d
267, 269 [2011]; People v Whitehead, 130 AD3d 1142, 1143 [2015],
lv denied 26 NY3d 1043 [2015]). However, an indictment may
charge multiple acts in a single count when the acts constitute a
continuing offense and the charged crime, by its nature, may be
1
Contrary to the People's argument, defendant properly
preserved this claim by raising it during the trial; he was not
required to raise it in a pretrial motion (see CPL 470.05;
compare People v Allen, 24 NY3d 441, 449-450 [2014]; People v
Simmons, 115 AD3d 1018, 1018-1019 [2014]; People v Hayes, 104
AD3d 1050, 1053 [2013], lv denied 22 NY3d 1041 [2013]).
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committed by multiple acts occurring over a period of time (see
People v Keindl, 68 NY2d 410, 421-422 [1986]; People v Flanders,
111 AD3d 1263, 1265 [2013], affd 25 NY3d 997 [2015]; see also
People v Hernandez, 235 AD2d 367, 368 [1997], lv denied 89 NY2d
1012 [1997]).
Relative to this charge, to establish that defendant was
guilty of reckless endangerment in the first degree, the People
were required to prove that, "under circumstances evincing a
depraved indifference to human life, he recklessly engage[d] in
conduct which create[d] a grave risk of death to another person"
(Penal Law § 120.25). The indictment count charged only one act
that could have been found to create a grave risk of death – the
act of firing multiple gunshots at close range in a crowded
stairwell. The other charged acts included interrupting the
teenagers' party, bullying and threatening the young guests,
accusing them of stealing or hiding the missing car keys,
threatening to strip search them and forcing them to submit to
physical searches, blocking them from leaving, assaulting some of
them, fighting with guests on an interior staircase and finally
pulling out one or more large-caliber handguns and, without
warning, firing gunshots. These acts were part of a continuous
course of conduct that led up to the shooting and, taken together
with the act of firing the handgun, established the separate
element of the crime requiring proof that defendant acted "under
circumstances evincing a depraved indifference to human life"
(Penal Law § 120.25; see People v Flanders, 111 AD3d at 1265).
There was no uncertainty as to the conduct that underlay the
jury's unanimous verdict (compare People v Estella, 107 AD3d
1029, 1031-1032 [2013], lvs denied 21 NY3d 1042, 1046 [2013];
People v Brammer, 189 AD2d 885, 885-886 [1993], lvs denied 81
NY2d 967, 977 [1993]), and we find that the count was not
duplicitous.
County Court properly denied defendant's motion to sever
counts 8, 10 and 11 of the indictment.2 "Offenses are joinable
2
We reject the People's assertion that this claim was
unpreserved, as defendant moved to sever the challenged counts in
his pretrial omnibus motion (see CPL 470.05 [2]; compare People v
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if, among other things, they are based upon different criminal
transactions but defined by the same or similar statutory
provisions, or if proof of either offense would be material and
admissible as evidence-in-chief at the trial of the other
offense" (People v Rogers, 94 AD3d 1246, 1248 [2012] [citation
omitted], lv denied 19 NY3d 977 [2012]; see CPL 200.20 [2] [b],
[c]; People v Raucci, 109 AD3d 109, 117 [2013], lv denied 22 NY3d
1158 [2014]). Count 8 charged defendant with criminal possession
of a weapon in the third degree based upon his alleged possession
of firearms during the 15-day period immediately before the
shooting at 811 Bridge Street in Schenectady, which was
defendant's residence at the time and was located across the
street from 730 Bridge Street, where the party took place.
Counts 10 and 11 charged defendant with endangering the welfare
of a child at 811 Bridge Street between December 2010 and March
2011 based upon defendant's dangerous activities in the presence
of children who also resided there, including keeping drugs,
loaded handguns and ammunition in a child's residence, using the
residence as a base for drug-dealing operations and displaying
one or more loaded guns to a child.
These counts were premised upon the same statutes that
formed the basis of counts 4 and 9, which charged criminal
possession of a weapon in the third degree and endangering the
welfare of a child based upon defendant's conduct at the party
(see Penal Law §§ 260.10 [1]; 265.02 [1]). When offenses are
joined solely because they are defined by similar statutory
provisions, severance may be granted in the interest of justice
upon a showing of good cause; however, a court has no discretion
to do so if other grounds for joinder exist (see CPL 200.20 [3];
People v Rogers, 94 AD3d at 1248). Here, County Court found
another ground for joinder, in that proof of the charges that
defendant sought to sever was "material and admissible as
[evidence-in-chief] upon [the] trial of the [remaining charges]"
(CPL 200.20 [2] [b]; see People v Bongarzone, 69 NY2d 892, 895
[1987]; People v Cherry, 46 AD3d 1234, 1236 [2007], lv denied 10
De Vivo, 282 AD2d 770, 771 [2001], lv denied 96 NY2d 900 [2001];
People v Merritt, 265 AD2d 733, 733 [1999], lv denied 94 NY2d 826
[1999]).
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NY3d 839 [2008]). The proof supporting counts 8, 10 and 11 of
the indictment included evidence that defendant possessed several
guns during the period shortly before the party – including
several firearms that defendant allegedly stored at 811 Bridge
Street and showed to a child who resided there, a .357 revolver
that defendant allegedly possessed and displayed on the night
before the shooting occurred, and a .44 revolver that he
allegedly purchased on the day of the shooting. This evidence
was material and relevant to show defendant's possession of and
access to the .44 revolver with which he allegedly shot the
victim and the .357 revolver that he was also charged with
possessing at the party (see People v Burnell, 89 AD3d 1118, 1121
[2011], lv denied 18 NY3d 922 [2012]; People v Lee, 80 AD3d 877,
880 [2011], lvs denied 16 NY3d 832, 833, 834 [2011]; People v
Portee, 56 AD3d 947, 950 [2008], lv denied 12 NY3d 820 [2009];
compare People v Myers, 22 NY3d 1010, 1011 [2013]). Thus, the
court lacked statutory authority to sever counts 8, 10 and 11,
and defendant's motion was properly denied (see CPL 200.20 [3];
People v Cherry, 46 AD3d at 1236).3
Defendant's pretrial motion to suppress identification
testimony was properly denied. "While the People have the
initial burden of going forward to establish the reasonableness
of the police conduct and the lack of any undue suggestiveness in
a pretrial identification procedure, it is the defendant who
bears the ultimate burden of proving that the procedure was
unduly suggestive" (People v Chipp, 75 NY2d 327, 335 [1990], cert
denied 498 U.S. 833 [1990] [citation omitted]). Here, the People
met their initial burden during the three-day combined
Wade/Huntley hearing by presenting the testimony of seven
detectives who conducted photographic identification procedures
in which 20 witnesses were asked to identify various persons of
interest in the shooting, including defendant. Witnesses were
interviewed one at a time in various locations and were shown
several photo arrays, each of which included a photograph of a
3
County Court further found that, even if joinder had been
based solely upon CPL 200.20 (2) (c) so that a discretionary
severance was available, defendant did not make the showing of
good cause required by CPL 200.20 (3).
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person of interest. Two of the arrays included defendant's
picture as one of a group of six color photographs of the same
individuals, with defendant's photograph in different positions
in each array. The photographs depicted six informally-clothed
males of apparently similar age and race, with similar features,
hairstyles, expressions and facial hair. The detectives
testified that witnesses were asked if they recognized anyone and
were instructed, among other things, to pay no attention to
differences in the styles of the photographs or to features that
could easily be changed. This testimony describing the fairness
of the identification procedure was adequate to shift the burden
to defendant to establish that the photo arrays were unduly
suggestive.
Defendant was required to show that "'some characteristic
of one picture draws the viewer's attention in such a way as to
indicate that the police have made a particular selection'"
(People v Davis, 18 AD3d 1016, 1018 [2005], lv denied 5 NY3d 805
[2005], quoting People v Yousef, 8 AD3d 820, 821 [2004], lv
denied 3 NY3d 743 [2004]; accord People v Lee, 30 AD3d 760, 762
[2006], lv denied 7 NY3d 850 [2006]). The fact that the
background of defendant's picture was lighter than the
backgrounds of the others – which varied in color and darkness –
did not "create a substantial likelihood that . . . defendant
would be singled out for identification" (People v Chipp, 75 NY2d
at 336; see People v Lawal, 73 AD3d 1287, 1288 [2010]; People v
Brown, 169 AD2d 934, 935 [1991], lv denied 77 NY2d 958 [1991];
People v Emmons, 123 AD2d 475, 476 [1986], lv denied 69 NY2d 827
[1987]). Contrary to defendant's claim, he was not the only
subject in the arrays who was depicted from the chest up, and the
fact that his shirt had a high collar and zipper did not call
undue attention to him, especially as his shirt was the same
dark color as the T-shirts worn by all but one of the others (see
People v Lee, 30 AD3d at 762; People v Sullivan, 300 AD2d 689,
690 [2002], lv denied 100 NY2d 587 [2003]). In view of the
overall strong similarity in the physical characteristics of the
subjects depicted in the photographs and the instruction to
witnesses to disregard features that could easily be changed, we
find that defendant did not demonstrate a substantial likelihood
that his picture would be singled out (see People v Lanier, 130
AD3d 1310, 1313 [2015], lv denied 26 NY3d 1009 [2015]; People v
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Matthews, 101 AD3d 1363, 1364-1365 [2012], lvs denied 20 NY3d
1101, 1104 [2013]).
County Court did not abuse its discretion by denying
defendant's request to call witnesses at the Wade/Huntley
hearing. A defendant does not have an absolute right to call
witnesses at such a hearing and may do so "only where the hearing
evidence raises substantial issues as to the constitutionality of
the identification procedure, where the People's evidence is
notably incomplete, or where the defendant otherwise establishes
a need for the witness's testimony" (People v Gant, 26 AD3d 516,
517 [2006] [internal quotation marks, ellipses and citations
omitted], lv denied 7 NY3d 756 [2006]; see generally People v
Chipp, 75 NY2d at 337). Here, there was nothing incomplete or
constitutionally questionable in the detectives' testimony
relative to the identification procedures. Further, defendant's
stated reasons for calling witnesses – including possible
communication among them – were wholly based on speculation (see
People v White, 79 AD3d 1460, 1461 [2010], lvs denied 17 NY3d
791, 803 [2011]). There was no evidence that the procedures
employed created opportunities for improper communication among
the witnesses, or that any such communications occurred. The
witnesses were interviewed one at a time and were instructed not
to tell other witnesses whether they had identified anyone, and
the use of two arrays with defendant's photograph in different
positions minimized the possibility of any witness influencing
another (compare People v Ocasio, 134 AD2d 293, 294 [1987]).
We reject defendant's challenge to Supreme Court's Molineux
rulings, which permitted evidence of defendant's gang membership,
prior possession of firearms and drugs, and threats against
potential witnesses. Evidence of prior bad acts or uncharged
crimes may be admitted when it falls within the list of
recognized Molineux exceptions, completes the narrative of the
charged crimes, provides necessary background information or is
otherwise "relevant to some issue other than the defendant's
criminal disposition" and its prejudicial effect is outweighed by
its probative value (People v Allweiss, 48 NY2d 40, 47 [1979];
see People v Morris, 21 NY3d 588, 594 [2013]; People v Rivera,
124 AD3d 1070, 1073 [2015], lv denied 26 NY3d 971 [2015]). Here,
as previously discussed, evidence of defendant's possession of
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firearms before the shooting was directly admissible as proof of
counts 8, 10 and 11 of the indictment, and was further admissible
as to several of the remaining counts under Molineux in that it
provided background information tending to prove defendant's
means of access to the murder weapon, and his identity as the
shooter. Evidence of defendant's drug-dealing activities was
likewise directly relevant to count 11, which charged endangering
the welfare of a child, premised in part upon defendant's drug-
dealing activities at 811 Bridge Street. It further provided
necessary background information explaining his relationship with
several of the witnesses who testified at trial (see People v
Johnson, 106 AD3d 1272, 1274 [2013], lvs denied 21 NY3d 1043,
1045, 1046 [2013]).
Testimony that defendant threatened potential witnesses and
warned that he had caused a witness who "snitch[ed]" on him to be
beaten up "was probative because it could be interpreted to
reflect [his] consciousness of guilt" (People v Peele, 73 AD3d
1219, 1221 [2010], lvs denied 15 NY3d 893, 894 [2010]; see People
v De Vivo, 282 AD2d 770, 772 [2001], lv denied 96 NY2d 900
[2001]). Notably, Supreme Court minimized any unfair resulting
prejudice by giving an appropriate limiting instruction. As for
evidence that defendant was a gang member, the People did not
allege that the shooting itself was motivated by any gang-related
purpose. Nevertheless, evidence that defendant belonged to the
Bloods street gang was material, relevant and connected to the
crime because it explained the relationship among defendant and
his adult companions – who were also Bloods – and the reasons for
their cooperation in disrupting the party, fighting with the
guests, fleeing together after the shooting, and later
reconvening elsewhere (see People v Viera, 133 AD3d 622, 624
[2015], lv denied 26 NY3d 1151 [2016]). Additionally,
defendant's gang membership provided background information
explaining the testimony of certain witnesses that defendant
trusted them enough to seek their assistance or confide in them
because he believed that they were also gang members.
Defendant's gang membership further helped to explain the initial
reluctance of some of the People's witnesses to cooperate with
police and to testify against him. Accordingly, this evidence
was probative of several relevant and material issues, and
Supreme Court did not abuse its discretion in determining that
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its prejudicial effect was outweighed by its probative value (see
People v Williams, 28 AD3d 1005, 1008 [2006], lv denied 7 NY3d
819 [2006]).
Next, defendant claims that his convictions for murder in
the second degree, reckless endangerment in the first degree and
unlawful imprisonment in the first degree are not supported by
legally sufficient evidence and are against the weight of the
evidence, in that the proof did not establish that he shot the
victim or exposed anyone to a risk of serious physical injury.
Defendant's legal sufficiency claim is unpreserved for our
review, as he did not raise these specific arguments at trial
(see People v March, 96 AD3d 1101, 1102 [2012], lv denied 20 NY3d
1063 [2013]; People v Lozada, 35 AD3d 969, 969-970 [2006], lv
denied 8 NY3d 947 [2007]). "Nevertheless, our weight of the
evidence analysis necessarily involves an evaluation of whether
all elements of the charged crimes were proven beyond a
reasonable doubt at trial" (People v Harden, 134 AD3d 1160, 1160
[2015] [internal quotation marks and citations omitted], lv
denied ___ NY3d ___ [June 7, 2016]; see People v Danielson, 9
NY3d 342, 348-349 [2007]).
The credible testimony of the People's witnesses, taken
together, established that defendant moved to Schenectady in 2010
with three fellow Bloods – the same individuals who later
accompanied him to the party where the shooting occurred – to
engage in the business of selling drugs on Bridge Street.
Defendant resided in his paramour's apartment at 811 Bridge
Street, where her children also resided, and brought two of the
Bloods members who later attended the party from Brooklyn to stay
there. The paramour testified that defendant kept several
firearms in her bedroom; one of her children, then 13 years old,
testified that defendant showed him ammunition and three
firearms, one of which was a silver and black gun with a small
barrel and a black handle – a description corresponding with the
.357 revolver that defendant allegedly possessed during the
shooting.
There was testimony from several witnesses who saw
defendant with firearms during the days immediately before the
shooting, including testimony that, on the night before the
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party, defendant was seen at 730 Bridge Street – where a friend
of his resided – with a .357 revolver. That night, defendant
also made contact with a witness who testified that, on the day
of the party, he helped defendant purchase a long-barreled Smith
& Wesson .44 revolver. Defendant allegedly took this weapon to
811 Bridge Street, where he and the companions who later attended
the party drank liquor and passed the newly purchased weapon
around. Defendant loaded the weapon from an ammunition box that
matched the description of a box that was later found in the
paramour's apartment with defendant's fingerprint on it.
Defendant and his companions then headed across the street
to the teenagers' party at 730 Bridge Street, where they
continued to drink and acted as bouncers, frisking some of the
guests and helping to collect cover charges. A witness testified
that he and a friend found a set of car keys in the apartment
during the party, determined that the keys belonged to a white
vehicle parked nearby and left to seek advice on how to steal the
car or its contents without being caught. As previously
described, this car had been rented by one of defendant's
companions, who soon discovered that the keys were missing.
After making this discovery, defendant allegedly left the party
briefly – long enough, according to the People, to cross the
street, get one or more of the firearms he stored at 811 Bridge
Street and change his clothing from the white T-shirt he had
previously worn to a blue sweater that helped him conceal weapons
on his person. One witness who described defendant's change of
clothing said that, following his return, defendant had to keep
adjusting his pants because they seemed to be sagging under a
weight.
Several witnesses testified that, among other things,
defendant ordered the guests to search for the keys, issued
threats, instructed the guests that no one could leave until they
were searched, and carried out some of the physically intrusive
searches on or near a staircase leading down to the exterior
door, while his companions and other individuals searched other
guests. At some point, defendant and one of his companions
allegedly stationed themselves at the foot of the interior
stairwell to block the exterior door and prevent guests who had
departed from coming back inside, while others carried out
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searches near the top of the stairs. When some guests refused to
be searched, a brawl broke out among several of the guests and
defendant's companions in the crowded stairwell. During the
ensuing confusion, a witness saw defendant's companion hand a
"big" gun with a long barrel to defendant, who was then standing
near the foot of the stairs. The companion then moved up the
stairs, fighting with a guest, while defendant remained below;
meanwhile, the victim, who had joined the struggle, descended the
stairs. Defendant and the victim began to fight, and several
witnesses saw defendant draw two revolvers and fire at least one
shot at the victim. Numerous witnesses heard one shot, followed
by several shots in quick succession. The victim's body was
found at the foot of the stairs, partially blocking the exterior
door. Forensic evidence established that he was shot four times
with a .44 revolver while he was on the stairway by someone
standing at or near the bottom of the stairs.
Witnesses outside saw defendant leave immediately after the
shooting, closely followed by his companions. One witness said
that defendant was holding two large guns as he left, which he
placed in the waist of his pants. Defendant's paramour testified
that she heard several gunshots from her apartment at 811 Bridge
Street. Shortly thereafter, defendant returned alone through a
back door, pulled a .44 revolver from his pants, opened its
cylinder and told her that he had shot the victim four times.
She testified that she saw ammunition in two of the weapon's six
chambers, while the remainder appeared dark and empty. Defendant
then took a bag of belongings and fled, leaving behind items
later found by police that included drug paraphernalia, clothing,
and the previously-mentioned box of ammunition bearing his
fingerprint. He was arrested a month later in Brooklyn. Sixteen
months after the shooting, rusted .357 and .44 revolvers were
found among debris in a nearby backyard, wrapped in a blue
sweater that matched the description of the one that defendant
had changed into just before the shooting. The .44 revolver was
a long-barreled Smith & Wesson that contained four spent casings
and two live rounds of the same type of ammunition that killed
the victim and was stored in the ammunition box. The .357
revolver was loaded but had not been fired.
Two inmates who encountered defendant in jail after his
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arrest testified that he made admissions related to the shooting.
One of these inmates said that defendant admitted that he had two
guns but fired only one, and that he shot the victim several
times, using a revolver. Defendant allegedly told another inmate
that he "finished" the victim and placed a box over his head
afterward – a box that several witnesses remembered seeing on or
near the victim immediately after the incident.
Defendant took the stand and offered an account of the
evening in which he admitted, among other things, that he
belonged to the Bloods, moved to Schenectady to sell drugs,
possessed the .44 revolver that was later recovered by police,
took the .357 revolver to the party and participated in searching
the guests and fighting with them. However, he denied that he
had shot the victim and suggested that one of his companions
might have done so. Defendant further presented several
witnesses whose testimony tended to support his version of events
or call into question the credibility of the accounts offered by
the People's witnesses. Had the jury credited this testimony, a
different verdict would not have been unreasonable (see People v
Romero, 7 NY3d 633, 643 [2006]). As defendant argues, there were
contradictions and inconsistencies in the testimony of the
People's witnesses; many of these witnesses initially declined to
cooperate with law enforcement, made early statements that were
inconsistent with their later trial testimony, or testified that
they were allowed to plead to reduced charges for unrelated
offenses in exchange for their testimony against defendant.
However, "these issues were fully explored during
cross-examination and, in the final analysis, posed credibility
questions for the jury to resolve" (People v Malak, 117 AD3d
1170, 1174 [2014], lv denied 24 NY3d 1086 [2014]; accord People v
Rivera, 124 AD3d at 1074; see People v Desmond, 118 AD3d 1131,
1133 [2014], lv denied 24 NY3d 1002 [2014]). Deferring to these
credibility determinations and viewing the evidence in a neutral
light (see People v Bleakley, 69 NY2d 490, 495 [1987]), we cannot
say that the jury failed to accord the evidence its proper
weight.
We reject defendant's assertion that he was deprived of a
fair trial by the admission of prejudicial and irrelevant
testimony from the victim's mother and his basketball coach on
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the first day of the trial. Supreme Court did not err in
admitting this testimony to the limited extent that it served to
explain how the victim – who had been at a basketball tournament
in New York City earlier that day – came to be present at the
party and to describe his demeanor and physical condition just
before the event (see People v White, 79 AD3d at 1463). Both
witnesses strayed beyond this purpose by offering emotional
comments and remarks on such irrelevant subjects as the victim's
personality; defendant objected to this testimony, and the court
promptly sustained the objections and attempted to minimize the
prejudicial impact by instructing the jury to disregard some of
the remarks (see id.). In view of the brevity of the challenged
testimony and the overwhelming other evidence of defendant's
guilt presented during the seven-week trial, we find that any
error was harmless, as there is no "significant probability" that
defendant would have been acquitted if the testimony had not been
admitted (People v Crimmins, 36 NY2d 230, 242 [1975]; accord
People v Smith, 217 AD2d 221, 238-239 [1995], lv denied 87 NY2d
977 [1996]).
Finally, in view of the heinous nature of defendant's
crimes, his lack of remorse and his extensive prior history of
crimes involving firearms and violence, we find no abuse of
discretion or extraordinary circumstances that warrant
modification of his sentence in the interest of justice (see
People v Martin, 136 AD3d 1218, 1220 [2016]; People v Rollins, 51
AD3d 1279, 1282-1283 [2008], lvs denied 11 NY3d 922, 930 [2009]).
Egan Jr., Lynch, Devine and Mulvey, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court