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

859
KA 09-01480
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MYCHAL A. CARR, DEFENDANT-APPELLANT.


KEVIN J. BAUER, ALBANY, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Shirley
Troutman, J.), rendered May 20, 2009. The judgment convicted
defendant, upon a jury verdict, of attempted murder in the first
degree, reckless endangerment 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 affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of attempted murder in the first degree (Penal Law
§§ 110.00, 125.27 [1] [a] [i], 20.00), reckless endangerment in the
first degree (§§ 120.25, 20.00) and criminal possession of a weapon in
the second degree (§ 265.03 [3]). Defendant contends that the People
failed to establish his identity as the shooter and thus that the
evidence is legally insufficient to support the conviction of
attempted murder and reckless endangerment. We reject that
contention. The evidence, when viewed in the light most favorable to
the People (see People v Contes, 60 NY2d 620, 621), is legally
sufficient to establish defendant’s identity as the shooter (see
People v Adams, 96 AD3d 1588, 1589). We further conclude that the
verdict on those counts is not against the weight of the evidence on
the issue of identification (see id.; see generally People v Bleakley,
69 NY2d 490, 495). The two police officers and the two civilian
witnesses who observed the drive-by shooting on Cambridge Avenue
testified unequivocally that the shooter was situated in the front
passenger seat of the vehicle. During the shooting, the shooter’s hat
blew off of his head and landed in the middle of the street, and
subsequent DNA testing matched defendant’s DNA to that found on the
hat. Defendant was also the source of the major DNA profile extracted
from the .380 semiautomatic handgun recovered in the parking lot where
defendant was apprehended, and four fired .380 cartridge cases
recovered by the police in the area of Cambridge Avenue exhibited
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                                                         KA 09-01480

“class characteristics” that were consistent with being fired from
that gun. In addition, a jailhouse informant testified that defendant
admitted to the informant that he was the shooter. Although the
informant has an extensive criminal history and received a favorable
plea deal in exchange for his testimony, we reject defendant’s
contention that his testimony was incredible as a matter of law (see
People v Morgan, 77 AD3d 1419, 1420, lv denied 15 NY3d 922; People v
Monk, 57 AD3d 1497, 1499, lv denied 12 NY3d 785; People v Pace, 305
AD2d 984, 985, lv denied 100 NY2d 585). The jury was informed of the
nature of the informant’s plea deal as well as the details of his
prior criminal conduct, including his rape of a six-year-old girl, and
we see no basis to disturb its credibility determination (see Morgan,
77 AD3d at 1420; Pace, 305 AD2d at 985).

     Defendant further contends that the evidence is legally
insufficient to support his conviction of criminal possession of a
weapon in the second degree because the .380 semiautomatic handgun was
not loaded when defendant was apprehended by the police and the gun
was recovered. We reject that contention. “[B]ased on the evidence
adduced at the trial, a rational jury could have inferred that, at
some point before the defendant’s apprehension by the police and the
concomitant recovery of the weapon, he possessed a firearm loaded with
operable ammunition with the intent to use it unlawfully against
another” (People v Bailey, 19 AD3d 431, 432, lv denied 5 NY3d 785).
The People introduced, inter alia, testimony that the handgun at issue
holds up to six bullets, five in the magazine and one in the chamber.
As noted above, the police recovered four .380 caliber casings on
Cambridge Avenue, and a police witness testified that defendant fired
two shots at his police car while he was pursuing defendant after the
drive-by shooting.

     We also reject the contention of defendant that County Court
erred in refusing to suppress DNA and fingerprint evidence as the
fruit of an unlawful arrest. The police observed defendant and two
other males in a parking lot around the corner from the abandoned
vehicle involved in the drive-by shooting within a minute after the
vehicle was discovered. The three individuals matched the general
description of the perpetrators. As the police approached the three
men in a marked patrol vehicle, two of the individuals fled and
defendant attempted to evade the police by forcing his way into an
apartment building. We conclude that defendant’s attempt to evade the
police and the flight of the other two individuals, coupled with
defendant’s temporal and geographic proximity to the abandoned
vehicle, provided the police with the requisite reasonable suspicion
that defendant had committed a crime, i.e., that he was one of the
occupants of the vehicle involved in the drive-by shooting and high-
speed chase (see People v Knight, 94 AD3d 1527, 1529; People v Butler,
81 AD3d 484, 485, lv denied 16 NY3d 893; People v Jackson, 78 AD3d
1685, 1685-1686, lv denied 16 NY3d 743). Further, defendant provided
inconsistent explanations to the police regarding the reason for his
presence in the parking lot, and the female resident who blocked
defendant’s entrance to the apartment building told the police that
she did not know defendant. Once the police located the handgun in
the parking lot where defendant and the two other individuals had been
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                                                         KA 09-01480

found, the police had probable cause to arrest defendant. We thus
conclude that the court properly denied defendant’s suppression motion
(see Knight, 94 AD3d at 1528; see generally Butler, 81 AD3d at 485).

     Contrary to the further contention of defendant, we conclude that
the court properly granted the People’s motion to amend the first
count of the indictment to specify Erie County as the situs of the
crime (see CPL 200.70; People v Cruz, 61 AD3d 1111, 1112; People v
DeSanto, 217 AD2d 636, 636, lv denied 87 NY2d 972). The indictment
was amended “during [the] trial” as required by CPL 200.70 (see
generally CPL 260.30; People v Griffin, 9 AD3d 841, 843), and the
amendment did not change the prosecution’s theory or prejudice
defendant (see Cruz, 61 AD3d at 1112). The caption of the indictment
specifies Erie County, the first count of the indictment states that
“THE GRAND JURY OF THE COUNTY OF ERIE” accuses defendant of attempted
murder in the first degree and the remaining counts of the indictment
all include the language “in this County.” Further, the bill of
particulars specifies with respect to count one of the indictment that
the alleged crime occurred “in the vicinity of Goodyear Avenue in the
City of Buffalo, County of Erie.” We thus conclude that the court
“providently exercised its discretion in permitting the prosecution to
amend [count one of] the indictment to allege the county where the
alleged offense occurred” (Matter of Blumen v McGann, 18 AD3d 870,
870-871; see People v Eaddy, 181 AD2d 946, 947-948, lv denied 79 NY2d
1048).

     Defendant contends that the grand jury proceedings were defective
because the People failed to present allegedly exculpatory evidence.
We reject that contention. It is well established that “[t]he People
have broad discretion in presenting a case to the grand jury and need
not ‘present all of their evidence tending to exculpate the accused’ ”
(People v Radesi, 11 AD3d 1007, 1007, lv denied 3 NY3d 760, quoting
People v Mitchell, 82 NY2d 509, 515; see People v Morris, 204 AD2d
973, 974, lv denied 83 NY2d 1005). Here, the testimony of one of the
officers at the felony hearing that another codefendant was situated
in the front passenger seat of the vehicle involved in the shooting
was not “entirely exculpatory” (People v Gibson, 260 AD2d 399, 399, lv
denied 93 NY2d 924), and the failure to present such testimony at the
grand jury “did not result in a ‘needless or unfounded prosecution’ ”
(People v Smith, 289 AD2d 1056, 1057, lv denied 98 NY2d 641, quoting
People v Valles, 62 NY2d 36, 38). Thus, the People’s failure to
present such evidence to the grand jury does not require dismissal of
the indictment (see Smith, 289 AD2d at 1057; Gibson, 260 AD2d at 399;
People v Dillard, 214 AD2d 1028, 1028).

     Defendant failed to preserve for our review his contention that
he is entitled to a new trial based upon the People’s delay in turning
over prior statements of the jailhouse informant (see People v
Rodriguez, 293 AD2d 336, 337, lv denied 98 NY2d 713; People v Perdomo,
280 AD2d 617, 617; People v Bradl, 231 AD2d 895, 895), and we decline
to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).
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                                                         KA 09-01480

     Finally, we conclude that the sentence is not unduly harsh or
severe.




Entered:   October 5, 2012                      Frances E. Cafarell
                                                Clerk of the Court
