                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 25, 2016                    105845
________________________________

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

KOLBY MARTIN,
                    Appellant.
________________________________


Calendar Date:    January 6, 2016

Before:    McCarthy, J.P., Garry, Rose and Devine, JJ.

                              __________


      James P. Milstein, Public Defender, Albany (Theresa M.
Suozzi of counsel), for appellant.

      P. David Soares, District Attorney, Albany (Brittany L.
Grome of counsel), for respondent.

                              __________


Rose, J.

      Appeal from a judgment of the Supreme Court (Lamont, J.),
rendered June 22, 2012 in Albany County, upon a verdict
convicting defendant of the crimes of attempted murder in the
second degree, criminal use of a firearm in the first degree and
criminal possession of a weapon in the second degree (three
counts).

      Following a jury trial, defendant was convicted of
attempted murder in the second degree, criminal use of a firearm
in the first degree and criminal possession of a weapon in the
second degree (three counts) for his role as the shooter in a
drive-by shooting. He was sentenced as a second felony offender
to an aggregate prison term of 25 years, followed by five years
                               -2-               105845

of postrelease supervision.   He now appeals.

      Supreme Court's Sandoval ruling "appropriately balanced the
probative value of the proof pertaining to defendant's
credibility against the risk of unfair prejudice" (People v
Portis, 129 AD3d 1300, 1303 [2015], lv denied 26 NY3d 1091 [2015]
[internal quotation marks and citation omitted]; see People v
Sandoval, 34 NY2d 371, 377 [1974]). When the People sought to
use five of defendant's 10 prior convictions to impeach him
during cross-examination, the court precluded inquiry into two of
them and limited the scope of inquiry into the remaining three
convictions to exclude any mention of the underlying facts.
While two of those three convictions – a 2002 conviction for
criminal sale of a controlled substance in the fifth degree and a
2001 conviction of attempted robbery in the second degree – were
remote in time, "there is no bright-line rule of exclusion based
upon age of conviction" (People v Wilson, 78 AD3d 1213, 1216
[2010], lv denied 16 NY3d 747 [2011]; see People v Portis, 129
AD3d at 1303), and the court correctly noted that both
convictions directly implicated defendant's willingness to put
his own interests above those of society.

      Although defendant's challenge to the legal sufficiency of
the evidence was not properly preserved (see People v Hawkins, 11
NY3d 484, 492 [2008]; People v Briggs, 129 AD3d 1201, 1202
[2015], lv denied 26 NY3d 1038 [2015]), we will evaluate the
adequacy of the proof at trial as part of our weight of the
evidence review (see People v Danielson, 9 NY3d 342, 349 [2007];
People v Andrews, 127 AD3d 1417, 1419 [2015], lv denied 25 NY3d
1159 [2015]). At trial, the People produced an eyewitness who
testified that she saw a vehicle pull up to the curb of a city
street and then heard a series of gunshots fired at two young men
on the sidewalk. As the victims fled, the eyewitness saw blood
on the back of one victim's shirt. A police sergeant, who also
heard the initial shots and observed a driver and a passenger in
the vehicle, testified that he witnessed an arm emerge from the
passenger-side window and fire a handgun at one of the fleeing
victims. The vehicle then sped away and a number of police
vehicles became involved in an extended high speed chase through
city streets, ending in defendant's apprehension.
                              -3-                  105845

      During the chase, a police detective who had known
defendant for over 10 years clearly observed and identified him
as the passenger in the vehicle. As the detective pursued the
vehicle, he saw it slow down and then speed up again after the
passenger-side door swung open for a moment. The detective
returned to that location, where two loaded and operable handguns
were recovered. At trial, the People's experts linked
defendant's DNA and a shell casing recovered from the scene to
the handguns. Viewing the evidence in a neutral light and
according deference to the jury's credibility determinations, we
find that the verdict was not against the weight of the evidence
(see People v Lanier, 130 AD3d 1310, 1311 [2015], lv denied 26
NY3d 1009 [2015]; People v Miller, 118 AD3d 1127, 1128-1129
[2014], lv denied 24 NY3d 1086 [2014]; People v Molina, 79 AD3d
1371, 1375-1376 [2010], lv denied 16 NY3d 861 [2011]).

      In view of defendant's extensive criminal history, his
involvement in a shooting rampage on a city street and his
participation in a high speed chase endangering the lives of
police and the general public, for which he has expressed no
remorse, we reject his claim that Supreme Court's imposition of
the maximum sentence was unduly harsh or excessive (see People v
Matthews, 134 AD3d 1248, 1251 [2015]; People v Griffin, 122 AD3d
1068, 1071 [2014], lv denied 25 NY3d 1164 [2015]).

     McCarthy, J.P., Garry and Devine, JJ., concur.


     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
