        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

76
KA 15-00040
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

DASHAWN A. BUTLER, ALSO KNOWN AS DASHAWN BUTLER,
ALSO KNOWN AS DASHAWN ALLEN BUTLER,
DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CAITLIN M. CONNELLY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the   Genesee County Court (Robert C.
Noonan, J.), rendered December 22,   2014. The judgment convicted
defendant, upon a jury verdict, of   criminal use of a firearm in the
second degree, criminal possession   of a weapon in the fourth degree
and attempted assault in the first   degree.

     It is hereby ORDERED   that the judgment so appealed from is
unanimously modified as a   matter of discretion in the interest of
justice and on the law by   reversing that part convicting defendant of
criminal use of a firearm   in the second degree and dismissing count
one of the indictment and   as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal use of a firearm in the second degree
(Penal Law § 265.08 [2]), criminal possession of a weapon in the
fourth degree (§ 265.01 [1]), and attempted assault in the first
degree (§§ 110.00, 120.10 [1]), arising from an incident in which
defendant pointed a gun at the victim and fired several rounds.
Contrary to defendant’s contention, we conclude that the conviction of
criminal possession of a weapon in the fourth degree is supported by
legally sufficient evidence that the firearm was operable, and the
conviction of attempted assault in the first degree is supported by
legally sufficient evidence that the firearm was both operable and
loaded with live ammunition (see generally People v Shaffer, 66 NY2d
663, 664). Despite the lack of forensic evidence, “the People
supplied the necessary proof through circumstantial evidence, i.e.,
eyewitness testimony and surrounding circumstances” (People v Spears,
125 AD3d 1401, 1402, lv denied 25 NY3d 1172 [internal quotation marks
omitted]). Furthermore, viewing the evidence in light of the elements
of the crimes as charged to the jury (see People v Danielson, 9 NY3d
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                                                         KA 15-00040

342, 349), we conclude that the verdict is not against the weight of
the evidence (see generally People v Bleakley, 69 NY2d 490, 495).

     We reject defendant’s contention that he was denied his right to
confront one of the witnesses against him when County Court received
in evidence that witness’s grand jury testimony. A defendant may not
assert his or her constitutional right of confrontation to prevent the
admission of grand jury testimony when “ ‘it has been shown that the
defendant procured the witness’s unavailability through violence,
threats, or chicanery’ ” (People v Smart, 23 NY3d 213, 220; see People
v Vernon, 136 AD3d 1276, 1278, lv denied 27 NY3d 1076). At a Sirois
hearing, a police detective testified that the witness told him that
defendant had threatened to harm her if she said anything about the
shooting. The detective convinced the witness to come to the
courthouse on the day of trial but, upon her arrival, she refused to
testify because defendant had confronted her during the prior weekend
and said that he wanted to “beat the shit out of her” for testifying
before the grand jury. In addition, a man who identified himself as
defendant’s cousin told her that “she had snitched” and threatened to
kill her. Based on the foregoing, we conclude that the court properly
determined that the People established by the requisite clear and
convincing evidence that the witness was unavailable to testify due to
defendant’s misconduct (see People v Geraci, 85 NY2d 359, 370; People
v Miller, 61 AD3d 1429, 1429, lv denied 12 NY3d 927).

     We reject defendant’s further contention that the court erred in
denying his motion to dismiss the indictment pursuant to CPL 30.30.
“[T]he period of delay resulting from the absence or unavailability of
the defendant” is not chargeable to the People, and “[a] defendant
must be considered absent whenever his location is unknown and he is
attempting to avoid apprehension or prosecution, or his location
cannot be determined by due diligence” (CPL 30.30 [4] [c] [i]).
“ ‘The police are not required to search for a defendant indefinitely,
but they must exhaust all reasonable investigative leads as to his or
her whereabouts’ ” (People v Williams, 137 AD3d 1709, 1710). At the
hearing on defendant’s motion, a police sergeant testified that,
during the 57-day period before defendant was apprehended, the police
conducted street investigations, held regular briefings, shared
intelligence, monitored social media accounts that the police believed
to contain information about defendant, and surveilled residences
where defendant may have been staying. In light of those efforts to
locate defendant, we conclude that the court properly excluded that
time from the speedy trial calculation (see People v Hawkins, 130 AD3d
1298, 1300-1301, lv denied 26 NY3d 968).

     Defendant contends that the grand jury proceedings were defective
because the prosecutor failed to disclose evidence favorable to the
defense prior to the grand jury proceeding or present that evidence to
the grand jury. We reject that contention inasmuch as the allegedly
favorable evidence was not “entirely exculpatory” (People v Gibson,
260 AD2d 399, 399, lv denied 93 NY2d 924), and the failure to disclose
that evidence or present it to the grand jury “did not result in a
needless or unfounded prosecution” (People v Smith, 289 AD2d 1056,
1057, lv denied 98 NY2d 641 [internal quotation marks omitted]).
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                                                         KA 15-00040

     Defendant’s challenge to the court’s Sandoval ruling is not
preserved for our review inasmuch as defendant did not object to the
court’s ultimate ruling (see People v Davey, 134 AD3d 1448, 1450). In
any event, the record establishes that the court “weighed appropriate
concerns and limited both the number of convictions and the scope of
permissible cross-examination” (id. at 1451 [internal quotation marks
omitted]), and thus we conclude that the court’s ruling does not
constitute an abuse of discretion.

     We agree with defendant, however, that the use or display of the
firearm while committing the class C felony of attempted assault in
the first degree cannot serve as the predicate for his conviction of
criminal use of a firearm in the second degree inasmuch as the use or
display of that same firearm satisfied an element of attempted assault
in the first degree (see People v Brown, 67 NY2d 555, 560-561, cert
denied 479 US 1093; People v Wegman, 2 AD3d 1333, 1335, lv denied 2
NY3d 747). Although defendant failed to preserve that contention for
our review (see People v Simpson, 292 AD2d 852, 853, lv denied 98 NY2d
655), we exercise our power to review it as a matter of discretion in
the interest of justice (see CPL 470.15 [6] [a]), and we modify the
judgment by reversing that part convicting him of criminal use of a
firearm in the second degree and dismissing that count of the
indictment. We reject defendant’s further contention that the count
charging criminal possession of a weapon in the fourth degree is an
inclusory concurrent count of attempted assault in the first degree
(see People v Solomon, 96 AD3d 1396, 1397; see generally People v
Miller, 168 AD2d 642, 642, lv denied 78 NY2d 956).

     Finally, the sentence is not unduly harsh and severe.




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
