                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: May 12, 2016                       106299
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

JOSHUA HARWOOD,
                    Appellant.
________________________________


Calendar Date:    March 22, 2016

Before:   Lahtinen, J.P., McCarthy, Garry, Rose and Mulvey, JJ.

                              __________


     Adam G. Parisi, Schenectady, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Peter H.
Willis of counsel), for respondent.

                              __________


McCarthy, J.

      Appeal from a judgment of the County Court of Schenectady
County (Hoye, J.), rendered July 24, 2013, upon a verdict
convicting defendant of the crimes of attempted murder in the
second degree, attempted assault in the first degree, criminal
possession of a weapon in the second degree (two counts) and
reckless endangerment in the first degree.

      Defendant was charged in a five-count indictment with
various crimes stemming from his alleged involvement in a
shooting. Following a jury trial, defendant was convicted of
attempted murder in the second degree, attempted assault in the
first degree, two counts of criminal possession of a weapon in
the second degree and reckless endangerment in the first degree.
Defendant was sentenced, as a second felony offender, to an
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aggregate prison term of 20 years to be followed by five years of
postrelease supervision. Defendant appeals, and we affirm.

      We reject defendant's contention that the verdict was
either based on legally insufficient evidence or that it was
against the weight of the evidence. Guilt of attempted murder in
the second degree requires proof "that defendant, acting with
intent to cause the death of another, engaged in conduct which
tended to effect the commission of that crime" (People v
Greenfield, 112 AD3d 1226, 1226 [2013], lv denied 23 NY3d 1037
[2014]; see Penal Law §§ 110.00, 125.25 [1]). In regard to the
charge of attempted assault in the first degree, the People had
to prove that, "[w]ith intent to cause serious physical injury to
another person," defendant attempted to cause "such injury to
such person or to a third person by means of a deadly weapon or a
dangerous instrument" (Penal Law § 120.10 [1]; see Penal Law §
110.00; People v Lanier, 130 AD3d 1310, 1311 [2015], lv denied 26
NY3d 1009 [2015]). One count of criminal possession of a weapon
in the second degree required proof that defendant intended to
use a loaded firearm against another person, while the other
count required defendant to possess a loaded firearm outside of
his home or business (see Penal Law § 265.03 [1] [b]; [3]; People
v Capers, 129 AD3d 1313, 1314 [2015]). Finally, "[a] person is
guilty of reckless endangerment in the first degree when, 'under
circumstances evincing a depraved indifference to human life, he
[or she] recklessly engages in conduct which creates a grave risk
of death to another person'" (People v Heesh, 94 AD3d 1159, 1161
[2012], lv denied 19 NY3d 961 [2012], quoting Penal Law §
120.25).

      At trial, proof was introduced that defendant, in a phone
call shortly before the shooting, had threatened to kill his ex-
girlfriend, who lived on the street where the shooting occurred.
Further proof was introduced suggesting that defendant knew what
street the ex-girlfriend lived on, but not, perhaps, the exact
residence. Evidence related to a GPS tracker established that,
at the time of the shooting, a vehicle that defendant drove was
stopped in close approximation to the scene of the shooting.
Moreover, evidence placed defendant in that car in the immediate
aftermath of the shooting. In addition, ballistic evidence was
consistent with certain types of firearms having been used in the
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shooting, and other evidence tended to suggest that defendant had
recently stolen matching firearms. The testimony of defendant's
niece and sister established that defendant had left their
residence shortly before the shooting and returned shortly after
the shooting. The ex-girlfriend testified that, after hearing
the gunshots near her residence, she saw defendant running away
from the street where the shooting had occurred. Defendant's
sister testified that when defendant returned to their residence,
he placed his clothes in the wash, began to wash himself with
bleach substitute and explained that he was taking these actions
in order to remove gunshot residue. Finally, proof was
introduced from which a reasonable inference could be drawn that
it would have been readily apparent to a shooter that the
residence into which shots were fired was occupied by people.

      Given the aforementioned proof, the evidence was legally
sufficient to support the jury's verdict (see People v Miller,
118 AD3d 1127, 1129 [2014], lv denied 24 NY3d 1086 [2014]).
Further, all of the witness credibility issues that defendant now
raises were directly before the jury. Given its opportunity to
view the witnesses' testimony, we defer to the jury's credibility
assessments. Accordingly, we find that the verdict was not
against the weight of the evidence (see People v Speed, 134 AD3d
1235, 1236 [2015]; People v Lanier, 130 AD3d at 1311).

      Finally, we reject defendant's contention that County Court
abused its discretion by allowing the introduction of evidence
suggesting that defendant had committed uncharged burglaries.
Defendant's confession indicating his involvement in those
burglaries, as well as evidence found in his possession that
matched certain items that had been reported stolen, was
compelling proof that defendant had in fact committed such
uncharged crime. In addition, ballistic evidence tended to
suggest that weapons used in the shooting matched the types of
weapons stolen in the aforementioned burglaries and, therefore,
the burglary evidence tended to establish defendant's identity as
a person involved in the shooting. Accordingly, the court's
conclusion that this evidence was admissible because it fell
within the identity exception of Molineux and that its probative
value outweighed its prejudicial effect was not an abuse of
discretion (see People v Arafet, 54 AD3d 517, 521 [2008], affd 13
                              -4-                  106299

NY3d 460 [2009]; People v Brown, 13 AD3d 145, 146 [2004], lv
denied 4 NY3d 828 [2005]). Defendant's remaining contentions are
without merit.

     Lahtinen, J.P., Garry, Rose and Mulvey, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
