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

843
KA 14-01967
PRESENT: WHALEN, P.J., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CORDARISE HOUSTON, DEFENDANT-APPELLANT.


ROBERT M. GRAFF, LOCKPORT, FOR DEFENDANT-APPELLANT.

CORDARISE HOUSTON, DEFENDANT-APPELLANT PRO SE.

NIAGARA COUNTY DISTRICT ATTORNEY’S OFFICE, LOCKPORT (THOMAS H. BRANDT
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Matthew J.
Murphy, III, J.), rendered July 30, 2014. The judgment convicted
defendant, upon a jury verdict, of attempted murder in the second
degree, assault in the first degree and criminal possession of a
weapon in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that all of the sentences
imposed shall run concurrently and as modified the judgment is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of attempted murder in the second degree (Penal
Law §§ 110.00, 125.25 [1]), assault in the first degree (§ 120.10
[1]), and criminal possession of a weapon in the second degree
(§ 265.03 [3]). The victim called 911 to report that he had been shot
in the chest at his home, and he identified defendant, his close
friend for many years, as the shooter to both the 911 operator and to
a police officer at the scene. The victim sustained at least six
gunshot wounds and was left paralyzed from the waist down. At trial,
he confirmed that a recording of his 911 call and statements at the
scene depicted his voice, but he testified that he had no memory of
the shooting.

     We reject defendant’s contention that County Court erred in
admitting the victim’s statements to the 911 operator and police
officer as excited utterances. The record establishes that the victim
made the statements very shortly after the shooting and repeatedly
said that he was dying, and we are satisfied that he spoke under the
stress of the excitement caused by being shot and severely injured,
while “ ‘his reflective capacity was stilled’ ” (People v Cantave, 21
                                 -2-                           843
                                                         KA 14-01967

NY3d 374, 381, clarification denied 21 NY3d 1070; see People v
Mulligan, 118 AD3d 1372, 1372-1373, lv denied 25 NY3d 1075; People v
Kelley, 46 AD3d 1329, 1330-1331, lv denied 10 NY3d 813).

      Defendant further contends that the admission of the victim’s
statements to the police officer violated his constitutional right of
confrontation because those statements were testimonial in nature (see
generally Crawford v Washington, 541 US 36, 50-54). Even assuming,
arguendo, that the victim’s alleged memory loss rendered the
statements at issue inadmissible if testimonial notwithstanding that
defendant had the opportunity to cross-examine the victim at trial
(cf. United States v Owens, 484 US 554, 557-560; People v Linton, 21
AD3d 909, 910, lv denied 5 NY3d 853), we reject defendant’s
contention. The record supports the court’s determination that the
statements were not testimonial, i.e., that the “primary purpose” of
the victim’s conversation with the officer was to enable the police to
address an ongoing emergency, rather than to generate information for
use in a future prosecution (Davis v Washington, 547 US 813, 822; see
Michigan v Bryant, 562 US 344, 371-378; People v Nieves-Andino, 9 NY3d
12, 15-16; People v Anderson, 114 AD3d 1083, 1084-1085, lv denied 22
NY3d 1196; cf. People v Clay, 88 AD3d 14, 21-24, lv denied 17 NY3d
952).

     Defendant concedes that the evidence is legally sufficient to
support his conviction if the victim’s identifying statements were
properly admitted, and we reject his contention that the verdict is
against the weight of the evidence with respect to the issue of
identification (see generally People v Bleakley, 69 NY2d 490, 495).
“The jury’s resolution of credibility and identification issues is
entitled to great weight” (People v Mobley, 49 AD3d 1343, 1345, lv
denied 11 NY3d 791 [internal quotation marks omitted]), and the
exculpatory scenarios proposed by defendant on appeal are merely
speculative (see People v Rodriguez, 125 AD3d 472, 472, lv denied 26
NY3d 971; see generally People v Bouwens, 128 AD3d 1393, 1393-1394).

     Contrary to defendant’s contention, he was not entitled to a
complete circumstantial evidence charge inasmuch as “[t]he excited
utterances of a victim identifying the shooter constitute direct
evidence of guilt” (People v Vigliotti, 270 AD2d 904, 905, lv denied
95 NY2d 839, reconsideration denied 95 NY2d 970; see generally People
v Daddona, 81 NY2d 990, 992). Defendant did not object to the
prosecutor’s allegedly improper remarks on summation, and he thus
failed to preserve for our review his contention that those remarks
denied him a fair trial (see CPL 470.05 [2]; People v Rumph, 93 AD3d
1346, 1347, lv denied 19 NY3d 967). In any event, the remarks in
question constituted fair comment on the content of the victim’s
statements (see People v Albaladejo, 10 AD3d 582, 582, lv denied 4
NY3d 740), and we reject defendant’s further contention that defense
counsel’s failure to object to them deprived him of effective
assistance of counsel (see People v Isaac, 137 AD3d 1164, 1165, lv
denied 27 NY3d 1134; People v Hendrix, 132 AD3d 1348, 1348, lv denied
26 NY3d 1145).
                                 -3-                           843
                                                         KA 14-01967

     Defendant also contends that he was denied due process at
sentencing by the court’s consideration of speculation by the
prosecutor concerning the motive for the shooting (see generally
People v Naranjo, 89 NY2d 1047, 1049). That contention is not
preserved for our review because defendant made no relevant objection
at sentencing (see People v Colome-Rodriguez, 120 AD3d 1525, 1525-
1526, lv denied 25 NY3d 1161; People v Byrd, 116 AD3d 875, 876-877, lv
denied 24 NY3d 1001), and we decline to exercise our power to review
it as a matter of discretion in the interest of justice (see CPL
470.15 [6] [a]). We also conclude that defendant has not shown that
he was denied effective assistance of counsel at sentencing (see
People v Orengo, 97 NY2d 739, 739-740; People v Saladeen, 12 AD3d
1179, 1180, lv denied 4 NY3d 767).

     We agree with defendant, however, that the sentence is illegal
insofar as the court directed that the sentence imposed on the count
charging criminal possession of a weapon run consecutively to the
sentences imposed on the other counts, and we note that this
contention does not require preservation (see People v Fuentes, 52
AD3d 1297, 1300-1301, lv denied 11 NY3d 736). The People had the
burden of establishing that consecutive sentences were legal, i.e.,
that the crimes were committed through separate acts (see People v
Rodriguez, 25 NY3d 238, 244; see generally Penal Law § 70.25 [2]), and
they failed to meet that burden. There was no evidence presented at
trial that defendant’s act of possessing a loaded firearm “was
separate and distinct from” his act of shooting the victim (People v
Harris, 115 AD3d 761, 762-763, lv denied 23 NY3d 1062, reconsideration
denied 24 NY3d 1084; cf. People v Evans, 132 AD3d 1398, 1398-1399, lv
denied 26 NY3d 1087; see generally People v Brown, 21 NY3d 739, 750-
752). We therefore modify the judgment by directing that all of the
sentences run concurrently. The sentence, as so modified, is not
unduly harsh or severe.

     Finally, the various contentions in defendant’s pro se
supplemental brief concerning the court’s dismissal of a sworn juror
are unpreserved for our review (see People v Hicks, 6 NY3d 737, 739;
People v Astacio, 105 AD3d 1394, 1395-1396, lv denied 22 NY3d 1154;
People v Rodriguez, 2 AD3d 1359, 1360, lv denied 1 NY3d 633,
reconsideration denied 2 NY3d 805), we decline to exercise our power
to review them as a matter of discretion in the interest of justice
(see CPL 470.15 [6] [a]), and we conclude that defendant was not
denied effective assistance of counsel by his attorney’s handling of
the juror’s dismissal (see People v Clark, 139 AD3d 1368, 1371; see
generally People v Colon, 90 NY2d 824, 825-826).




Entered:   September 30, 2016                  Frances E. Cafarell
                                               Clerk of the Court
