         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1215
KA 10-01757
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARRIUS S. MOLSON, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (MARY-JEAN BOWMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THERESA L. PREZIOSO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Matthew J.
Murphy, III, J.), rendered June 29, 2010. The judgment convicted
defendant, upon a jury verdict, of murder in the second 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: On appeal from a judgment convicting him following a
jury trial of murder in the second degree (Penal Law § 125.25 [1]) and
criminal possession of a weapon in the second degree (§ 265.03 [3]),
defendant contends that the evidence is legally insufficient to
establish his liability as an accessory. We reject that contention.
“Accessorial liability requires only that defendant, acting with the
mental culpability required for the commission of the crime,
intentionally aid another in the conduct constituting the offense”
(People v Chapman, 30 AD3d 1000, 1001, lv denied 7 NY3d 811 [internal
quotation marks omitted]; see § 20.00). Here, we conclude that there
was evidence from which the jury could have reasonably inferred that
defendant and his accomplice shared “a common purpose and a collective
objective” (People v Cabey, 85 NY2d 417, 422), and that “defendant
either shot the victim or shared in the intention of the [accomplice]
to do so” (People v Morris, 229 AD2d 451, lv denied 88 NY2d 990).
Immediately prior to the shooting, the victim was located on the porch
of a house with one of the witnesses. That witness testified that,
before she fled into the house, she observed defendant approach the
porch with a gun raised toward the victim (see People v Irizarry, 233
AD2d 209, 209-210, lv denied 89 NY2d 924, 943, 988). The People also
presented evidence establishing that, just before the shooting,
defendant overheard the accomplice state that he was going to “fxxx
[the victim] up,” and the People further established that defendant
arrived at and left the scene with that accomplice (see People v
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                                                         KA 10-01757

Carter, 293 AD2d 484, lv denied 99 NY2d 626). Moreover, shortly after
his arrest, defendant told a jail officer that he had “just committed
murder.”

     Viewing the evidence in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s further contention that the verdict is against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495). We conclude that “an acquittal would not have been
unreasonable” inasmuch as the jury could have concluded that
defendant’s accomplice fired all of the shots and that the
identification made by the witness who observed defendant approach the
porch was mistaken (Danielson, 9 NY3d at 348). We further conclude,
however, that the jury was justified in finding defendant guilty
beyond a reasonable doubt in light of the evidence of accessorial
liability set forth above (see id.).

     Defendant contends that County Court erred in refusing to
suppress an identification of defendant from the second photo array
shown to the witness who observed defendant approach the porch because
that identification procedure was unduly suggestive. We reject that
contention. The mere fact that the police show a witness multiple
photo arrays does not render the second photo array suggestive where,
as here, the police mitigated any potential suggestiveness by using a
markedly different photograph of the defendant in the second photo
array and placing it in a different location than in the first photo
array (see People v Daniels, 202 AD2d 987). Further, the second photo
array was not rendered unduly suggestive by the fact that defendant
was the only individual depicted in both photo arrays (see id.), or by
the fact that the witness failed to identify defendant in the first
photo array (see People v Brennan, 261 AD2d 914, lv denied 94 NY2d
820). We conclude that the composition and appearance of the second
photo array was not unduly suggestive. The individuals depicted
therein were generally similar in appearance to defendant, inasmuch as
they all were black males who appeared to be of similar age and skin
tone, and the photographs were similarly cropped (see generally People
v McBride, 14 NY3d 440, 448, cert denied ___ US ___, 131 S Ct 327).

     Contrary to defendant’s further contention, the statement of his
accomplice that he wanted to “fxxx [the victim] up” was not hearsay,
and the court therefore properly admitted that statement in evidence.
Defendant was present when his accomplice made that statement, and the
People sought to admit the statement in evidence to provide
circumstantial evidence of defendant’s state of mind, i.e., that
defendant went to the crime scene with the accomplice knowing that
violence was likely to result, not to prove the truth of the matter
asserted by the accomplice (see People v Davis, 58 NY2d 1102, 1103;
People v Daniels, 265 AD2d 909, 910, lv denied 94 NY2d 878).

     We agree with defendant that the court erred in admitting in
evidence his statement to another individual that he was asked to
leave a bar shortly before the shooting because the bar’s manager
“said he had a gun.” That statement, although made by defendant,
constituted double hearsay and involved nothing more than defendant’s
                                 -3-                             1215
                                                            KA 10-01757

repetition of a statement made by the manager. Thus, despite the
general rule that an out-of-court statement by a criminal defendant is
admissible against that defendant (see People v Chico, 90 NY2d 585,
589; People v O’Connor, 21 AD3d 1364, 1366, lv denied 6 NY3d 757),
defendant simply recounted the statement of another, and thus the
statement in question was inadmissible (see People v Smith, 172 NY
210, 236). We nevertheless conclude that such error is harmless. The
evidence of defendant’s guilt was overwhelming, and there was no
significant probability that defendant would have been acquitted had
his statement been excluded (see People v Kello, 96 NY2d 740, 744; see
generally People v Crimmins, 36 NY2d 230, 241-242). Indeed, there was
other evidence at trial, including the testimony of the witness who
observed defendant approach the porch, that placed him at the scene of
the shooting with a gun. In addition, another witness testified that
he saw two men fleeing the area of the shooting and that one of the
individuals had a gun. According to that witness, the individual with
the gun was wearing clothing that matched the description of
defendant’s clothing on the night of the murder provided by the
witness who observed him on the porch.

     Finally, the sentence is not unduly harsh or severe.




Entered:   November 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
