                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 10, 2014                     104833
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JALIL MILES, Also Known as
   JUNGLE,
                    Appellant.
________________________________


Calendar Date:   June 5, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Lynch and Devine, JJ.

                             __________


      M. Joe Landry, Schenectady, for appellant, and appellant
pro se.

      Robert M. Carney, District Attorney, Schenectady (John R.
Healy of counsel), for respondent.

                             __________


Lahtinen, J.P.

      Appeal from a judgment of the Supreme Court (Milano, J.),
rendered September 19, 2011 in Schenectady County, upon a verdict
convicting defendant of the crime of criminal possession of a
weapon in the second degree (two counts).

      In March 2010, defendant, Michael Capers, Virgil Terry and
codefendant Dashaun Terry were allegedly armed with several
handguns as they drove along a street in the City of Schenectady,
Schenectady County en route to a party. They slowed and struck
up a conversation with a group of pedestrians. At some point,
insults were exchanged, including derogatory comments reportedly
directed at Catoria Pittman whose brother, Alphonzo Pittman, was
                              -2-                104833

among the many teenage pedestrians in the immediate vicinity.
Alphonzo Pittman issued a challenge for a fist fight and the
group of four in the vehicle exited to the street as others
gathered around. The incident quickly escalated and a series of
shots were fired, with both Alphonzo Pittman and Virgil Terry
sustaining fatal bullet wounds. Defendant and Dashaun Terry were
charged together in a multicount indictment, and Capers was
separately indicted. Charges against defendant included, among
others, murder in the second degree (two counts) and criminal
possession of a weapon (six counts). Dashaun Terry accepted a
plea deal and testified against defendant. A jury acquitted
defendant of some of the charges, but found him guilty of two
counts of criminal possession of a weapon in the second degree.
He was sentenced to two concurrent 15-year prison terms plus five
years of postrelease supervision. Defendant appeals.

      Defendant contends that the convictions were not supported
by legally sufficient evidence. We are unpersuaded. To support
the two counts of criminal possession of the weapon in the second
degree of which defendant was convicted, "the People were
required to prove that defendant possessed a loaded firearm in a
place other than his home or business (see Penal Law § 265.03
[3]), and that he possessed a loaded firearm with intent to use
it unlawfully against another person (see Penal Law § 265.03 [1]
[b])" (People v Hawkins, 110 AD3d 1242, 1242 [2013], lv denied 22
NY3d 1041 [2013]). The extensive evidence at trial included,
among other things, Dashaun Terry testifying that he saw
defendant and Capers shooting handguns, with defendant's gun
pointed in the direction of Alphonzo Pittman as Capers shot
toward the crowd. Catoria Pittman recalled that defendant had a
gun in his hand, and it looked to her like he was firing it as
she observed a jerking-back motion by his hand. Another witness
described flashes of light coming from the person standing in the
location where defendant was standing. Witnesses who were unable
to identify the shooters nonetheless recalled repeated shots
being fired, and evidence indicated that only members of
defendant's group were armed. Defendant fled before police
arrived and, later that evening, a witness claimed to have
overheard defendant telling his mother that it was an accident.
A person incarcerated with defendant following his arrest
testified that defendant acknowledged that he shot a gun during
                              -3-                104833

the incident.

      Many of the witnesses had their credibility challenged to
varying degrees on cross-examination, but we accord deference to
the jury's resolution of credibility issues (see People v Niver,
41 AD3d 961, 963 [2007], lv denied 9 NY3d 924 [2007]; People v
Lockerby, 178 AD2d 805, 806-807 [1991], lv denied 80 NY2d 834
[1992]). Although no gun was found following the incident,
testimony by witnesses regarding gunshots "provides
circumstantial evidence that a gun was loaded and operable"
(People v Samba, 97 AD3d 411, 414 [2012], lv denied 20 NY3d 1065
[2013]) and, in fact, at least one gun from defendant's group was
operable as evidenced by the tragic results. There was ample
evidence that some of the shots came from defendant's handgun and
that he intended to use the gun unlawfully against another (see
e.g. People v Vargas, 60 AD3d 1236, 1238 [2009], lv denied 13
NY3d 750 [2009]). It is uncontested that the shootings occurred
outside on a street. Moreover, there was also sufficient
evidence that defendant shared the intent or purpose of the other
shooter from his group (see People v Bush, 75 AD3d 917, 918
[2010]), lv denied 15 NY3d 919 [2010]), and the jury could
convict defendant whether he was a principal or an accomplice
(see People v Smith, 89 AD3d 1126, 1130 [2011], lv denied 18 NY3d
962 [2012]; see also People v Baugh, 101 AD3d 1359, 1362 [2012],
lv denied 21 NY3d 911 [2013]; People v Weiner, 226 AD2d 757, 758
[1996]). Viewed in the light most favorable to the People (see
People v Vargas, 60 AD3d at 1237; People v Berry, 5 AD3d 866, 868
[2004], lv denied 3 NY3d 637 [2004]), there was sufficient proof
of all of the elements of the two crimes.

      Defendant's assertion that Supreme Court erred in failing
to instruct the jury on the accomplice corroboration rule was not
preserved for review (see People v Tabb, 12 AD3d 951, 953 [2004],
lv denied 4 NY3d 768 [2005]). Further, we find no merit in
defendant's contention that the testimony of Dashaun Terry was
not adequately corroborated. New York's accomplice corroboration
requirement (see CPL 60.22) "requires only enough nonaccomplice
evidence to assure that the accomplice[] ha[s] offered credible
probative evidence" (People v Breland, 83 NY2d 286, 293 [1994]),
and "even seemingly insignificant matters may harmonize with the
accomplice's narrative so as to provide the necessary
                              -4-                  104833

corroboration" (People v Caban, 5 NY3d 143, 155 [2005] [internal
quotation marks and citations omitted]). Here, in addition to
defendant's confessed involvement to another person while in jail
awaiting trial, corroborative evidence also included, among other
things, nonaccomplice eyewitnesses who placed defendant at the
scene, saw him armed with a handgun and heard gunshots (see
generally People v Berry, 78 AD3d 1226, 1227 [2010], lv denied 16
NY3d 828 [2011]; People v Faulkner, 36 AD3d 951, 952 [2007], lv
denied 8 NY3d 922 [2007]).

      Defendant states in a pro se argument that, after his trial
and sentencing, he learned of a possible Brady violation by the
People. This issue is "based on matters outside the record on
appeal and thus may properly be raised by way of a motion
pursuant to CPL article 440" (People v DeJesus, 110 AD3d 1480,
1482 [2013], lv denied 22 NY3d 1155 [2014]).

     McCarthy, Rose, Lynch and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
