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

757
KA 10-00178
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARQUIS STANLEY, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered November 24, 2009. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree and reckless endangerment in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the facts by reversing that part convicting
defendant of reckless endangerment in the first degree under count two
of the indictment and dismissing that count, and as modified the
judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]) and reckless endangerment in the first
degree (§ 120.25). Contrary to defendant’s contention, the second
showup identification procedure was “not so unnecessarily suggestive
as to create a substantial likelihood of misidentification” (People v
Duuvon, 77 NY2d 541, 545 [internal quotation marks omitted]). That
identification procedure occurred within an hour of the crime and
“ ‘at or near’ ” the intersection where defendant was observed
shooting a handgun (People v Blunt, 71 AD3d 1380, 1381, quoting
Duuvon, 77 NY2d at 544; see People v Clark, 262 AD2d 1051, 1051, lv
denied 93 NY2d 1016). Moreover, the fact that defendant was placed in
handcuffs and positioned between officers on a sidewalk did not render
the identification procedure unduly suggestive (see People v Siler, 45
AD3d 1403, 1403, lv denied 10 NY3d 771; People v Ponder, 19 AD3d 1041,
1043, lv denied 5 NY3d 809; People v Cortez, 221 AD2d 255, 256). We
reject defendant’s related contention that the verdict with respect to
the crime of criminal possession of a weapon in the second degree is
against the weight of the evidence owing to the People’s failure to
prove beyond a reasonable doubt that he was the individual who
possessed the handgun. Viewing the evidence in light of the elements
                                 -2-                           757
                                                         KA 10-00178

of the crime of criminal possession of a weapon in the second degree
as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
conclude that the verdict is not against the weight of the evidence
with respect to that crime (see generally People v Bleakley, 69 NY2d
490, 495).

     We reject defendant’s contention that he was deprived of
effective assistance of counsel because defense counsel failed to
request a jury instruction with respect to eyewitness identification
testimony or to call an expert witness to testify on that subject. We
conclude that defendant has not demonstrated “the absence of strategic
or other legitimate explanations for counsel’s alleged shortcomings”
(People v Benevento, 91 NY2d 708, 712 [internal quotation marks
omitted]). Viewing the evidence, the law and the circumstances of
this case, in totality and as of the time of the representation, we
further conclude that defendant received meaningful representation
(see People v Baldi, 54 NY2d 137, 147).

     Defendant failed to preserve for our review his contention that
he was denied a fair trial based on prosecutorial misconduct on
summation (see People v Young, 100 AD3d 1427, 1428, lv denied 20 NY3d
1105; see also CPL 470.05 [2]). In any event, “[t]he majority of the
comments in question were within the broad bounds of rhetorical
comment permissible during summations . . . , and they were either a
fair response to defense counsel’s summation or fair comment on the
evidence . . . Even assuming, arguendo, that some of the prosecutor’s
comments were beyond those bounds, we conclude that they were not so
egregious as to deprive defendant of a fair trial” (People v
McEathron, 86 AD3d 915, 916, lv denied 19 NY3d 975 [internal quotation
marks omitted]).

     We agree with defendant, however, that the verdict with respect
to reckless endangerment in the first degree is against the weight of
the evidence. “A person is guilty of reckless endangerment in the
first degree when, under circumstances evincing a depraved
indifference to human life, he recklessly engages in conduct [that]
creates a grave risk of death to another person” (Penal Law § 120.25).
The evidence at trial established only that defendant stood on a
street corner and fired up to five shots from a handgun. The People
“presented no evidence that any person . . . ‘was in or near the line
of fire’ ” so as to create a grave risk of death to any such person
(People v Scott, 70 AD3d 978, 979, lv denied 15 NY3d 778, 809; see
also People v Payne, 71 AD3d 1289, 1291, lv denied 15 NY3d 777; cf.
generally People v Summerville, 22 AD3d 692, 692, lv denied 6 NY3d
759; see generally People v Feingold, 7 NY3d 288, 294; People v
Suarez, 6 NY3d 202, 214). Consequently, we modify the judgment by
reversing that part convicting defendant of reckless endangerment in
the first degree and dismissing that count of the indictment. In
light of our determination with respect to that count of the
indictment, we need not consider defendant’s remaining contention
regarding that count. Finally, the sentence is not unduly harsh or
                          -3-                  757
                                         KA 10-00178

severe.




Entered:   July 5, 2013         Frances E. Cafarell
                                Clerk of the Court
