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

431
KA 09-00732
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRYSON DAVIS-JOHNSON, DEFENDANT-APPELLANT.


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KIMBERLY J. CZAPRANSKI
OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (AMANDA L. DREHER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered March 20, 2008. The judgment convicted
defendant, upon a jury verdict, of manslaughter in the second 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 manslaughter in the second degree (Penal Law §
125.15 [1]) after his first trial ended in a hung jury. Contrary to
defendant’s contention, the conviction is supported by legally
sufficient evidence (see generally People v Delamota, 18 NY3d 107,
113; People v Danielson, 9 NY3d 342, 349). Although defendant’s
further challenge to the legal sufficiency of the evidence at the
first trial is properly before us because “[t]he Double Jeopardy
Clause precludes a second trial if the evidence from the first trial
is determined by the reviewing court to be legally insufficient”
(People v Scerbo, 74 AD3d 1730, 1731, lv denied 15 NY3d 757; see
People v Scott, 107 AD3d 1635, 1636-1637, lv denied 21 NY3d 1077), we
reject that challenge. The evidence at both trials, which included
the testimony of four eyewitnesses, was substantially similar, and
demonstrated that defendant was “aware of and consciously
disregard[ed] a substantial and unjustifiable risk” of death when
defendant and at least one other individual gained entry to a known
drug house operated by the victim, and the victim was fatally shot
through his apartment door when he returned (§ 15.05 [3]; see §§
20.00, 125.15 [1]; see also People v Flayhart, 72 NY2d 737, 742;
People v Davis, 278 AD2d 886, 886-887, lv denied 96 NY2d 757). Even
if defendant’s “assistance was not initially planned, the totality of
the evidence permits only the conclusion that he knowingly
participated and continued to participate even after his companion’s
intentions became clear” (People v Allah, 71 NY2d 830, 832; see People
                                 -2-                           431
                                                         KA 09-00732

v Scott, 107 AD3d 1592, 1593, lv denied 22 NY3d 958).

     “Defendant was convicted ‘upon legally sufficient trial
evidence,’ and thus his contention with respect to the competency of
the evidence before the grand jury ‘is not reviewable upon an appeal
from the ensuing judgment of conviction’ ” (People v Haberer, 24 AD3d
1283, 1284, lv denied 7 NY3d 756, reconsideration denied 7 NY3d 848,
quoting CPL 210.30 [6]). Defendant’s sentence is not unduly harsh or
severe, and his remaining contention does not require modification or
reversal of the judgment.




Entered:   May 9, 2014                         Frances E. Cafarell
                                               Clerk of the Court
