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

903
KA 05-01624
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY M. GARRETT, DEFENDANT-APPELLANT.


PETER J. PULLANO, ROCHESTER (ANDREW FISKE OF COUNSEL), FOR
DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Elma A.
Bellini, J.), rendered July 6, 2004. The judgment convicted
defendant, upon a jury verdict, of murder in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of murder in the first degree (Penal Law § 125.27
[1] [a] [vii]). Viewing the evidence in light of the elements of the
crime as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we reject defendant’s contention that the verdict is against the
weight of the evidence with respect to the element of intent (see
generally People v Bleakley, 69 NY2d 490, 495). A different finding
by the jury, i.e., a finding that defendant acted without intent to
kill the victim, would have been unreasonable (see generally id.).
Defendant admitted that he shot the victim intentionally in his
statements to the police and one of his accomplices. Further, the
evidence established that, during the course of the robbery, defendant
warned the victim that he would shoot him in the event that the victim
did not turn out his pockets within a count of three and that
defendant followed through on that precise threat. The evidence also
established that defendant committed the robbery in a calm and
methodical manner prior to shooting the victim. In addition, the
People presented ballistics evidence demonstrating that the gun used
by defendant could not have been discharged accidently, and nothing
concerning the nature of the victim’s wounds cast any doubt on the
conclusion that defendant shot the victim with the intent to kill him.

     Defendant further contends that County Court erred in admitting
evidence related to uncharged crimes that he committed in Cleveland
immediately prior to being apprehended for the instant crime (see
                                 -2-                              903
                                                            KA 05-01624

generally People v Ventimiglia, 52 NY2d 350, 359; People v Molineux,
168 NY 264, 291-294). We conclude that evidence of defendant’s
criminal conduct in Cleveland was relevant “to complete the narrative”
of the People’s case insofar as it established that defendant fled
from Rochester and explained why key pieces of evidence were located
in Cleveland (People v Mullings, 23 AD3d 756, 758, lv denied 6 NY3d
756, 759; see generally People v Resek, 3 NY3d 385, 389-390). Each of
those aspects of the narrative, however, could have been established
without discussing the details of the Cleveland crimes, i.e., any
holes or ambiguities in the narrative “could . . . have been easily
dealt with by far less prejudicial means” (Resek, 3 NY3d at 390). We
therefore conclude that the court erred in admitting testimony related
to the details of the Cleveland crimes. Nevertheless, that error is
harmless. The court’s instructions severely limited the extent to
which the jury could rely upon testimony related to the Cleveland
crimes (see People v Walker, 84 AD3d 842, 843). The remaining
evidence against defendant, which included his admission to the crime,
was overwhelming, and there was no significant probability that
defendant would have been acquitted had the evidence concerning the
Cleveland crimes been excluded (see generally People v Crimmins, 36
NY2d 230, 241-242).

     We reject defendant’s contention that the court erred in
permitting the People to introduce evidence of prior consistent
statements made by one of his accomplices. On cross-examination,
defense counsel spent considerable time eliciting testimony from that
accomplice regarding the fact that he was testifying pursuant to a
plea agreement. Defense counsel’s apparent strategy in pursuing that
line of questioning was to suggest to the jury, however subtly, that
the plea deal accepted by the accomplice provided him with a motive
for lying about defendant’s involvement in the robbery and murder.
The People were free to elicit testimony from the accomplice
concerning his statements that were consistent with his trial
testimony and made prior to the date on which the plea agreement was
reached in order to refute defendant’s suggestion that the accomplice
had fabricated his testimony (see People v McDaniel, 81 NY2d 10, 18;
People v McClean, 69 NY2d 426, 428).

     Finally, the sentence is not unduly harsh or severe.




Entered:   October 7, 2011                      Patricia L. Morgan
                                                Clerk of the Court
