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

386
KA 12-01529
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KEVIN J. DAVIS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

KEVIN J. DAVIS, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael F.
Pietruszka, J.), rendered June 18, 2012. The judgment convicted
defendant, upon a jury verdict, of murder 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
following a jury trial of murder in the second degree (Penal Law §
125.25 [2] [depraved indifference murder]) for firing 19 shots from an
AK-47 assault rifle at a house in Buffalo. One of the bullets entered
the living room and struck the victim, a 15-year-old girl who was
sitting at the computer doing her homework. We reject defendant’s
contentions that the evidence is legally insufficient to establish
that he was the shooter, and that the verdict is against the weight of
the evidence in that regard. Defendant was identified as the shooter
by a fellow gang member who drove him to the scene of the crime, and
the police found the assault rifle used in the shooting in the attic
of an apartment defendant shared with his girlfriend. Moreover,
shortly after the shooting, defendant told another gang member that
“it went down” and that he “shot the house up.” A week and a half
later, defendant told another gang member that he had done “something
stupid” and that he felt bad about what happened to that “innocent
little girl.” Finally, when questioned by investigators while in
police custody, defendant initially stated that he had nothing to do
with the shooting. After he gave that statement, however, defendant
told the investigator, “If I can talk to my father, I’ll tell you the
truth and give you another statement.” Although defendant did not in
fact give another statement to the police after speaking to his
father, the latter statement indicates that defendant was not being
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                                                         KA 12-01529

truthful when he initially denied involvement in the shooting.

     Viewing the evidence in the light most favorable to the People,
as we must (see People v Contes, 60 NY2d 620, 621), we conclude that
“ ‘there is a valid line of reasoning and permissible inferences from
which a rational jury could have found’ ” that defendant was the
person who fired the assault weapon at the victim’s residence (People
v Danielson, 9 NY3d 342, 349; see generally People v Bleakley, 69 NY2d
490, 495). Viewing the evidence in light of the elements of the crime
as charged to the jury (see Danielson, 9 NY3d at 349), and giving
appropriate deference to the jury’s credibility determinations (see
People v Hill, 74 AD3d 1782, 1782-1783, lv denied 15 NY3d 805), we
further conclude that the verdict is not against the weight of the
evidence (see generally Bleakley, 69 NY2d at 495). Although defendant
asserts that his fellow gang members framed him and testified falsely
at trial, we accord great deference to the jury’s resolution of
credibility issues (see People v Mosley, 59 AD3d 961, 962, lv denied
12 NY3d 918, reconsideration denied 13 NY3d 861), and nothing in the
record suggests that the prosecution witnesses in question were “so
unworthy of belief as to be incredible as a matter of law” (People v
Miller, 115 AD3d 1302, 1305 [internal quotation marks omitted]).
Indeed, we note that none of those witnesses received anything in
return for such testimony.

     We reject defendant’s further contention that the evidence is
legally insufficient to establish that he acted with the mental state
of depraved indifference. The firing of numerous bullets “into a
house in which [defendant] had reason to believe people would be
present” is a quintessential example of depraved indifference (People
v Shackelford, 100 AD3d 1527, 1528, lv denied 21 NY3d 1009; see People
v McGee, 87 AD3d 1400, 1401, affd 20 NY3d 513; People v Payne, 3 NY3d
266, 271, rearg denied 3 NY3d 767, citing People v Jernatowski, 238 NY
188; People v Heesh, 94 AD3d 1159, 1160-1162, lv denied 19 NY3d 961;
People v Callender, 304 AD2d 426, 427, lv denied 100 NY2d 641). We
note that defendant opened fire on the house at approximately 8:45 on
a weeknight, multiple lights were on inside, and there was a vehicle
parked in the driveway. There were five people inside, including four
children. The police counted 14 bullet holes in the house and
collected 19 spent AK-47 cartridges outside.

     Defendant next contends that he was denied due process of law by
the admission of evidence that he made the aforementioned statement to
the police about giving another statement and telling the truth if he
were allowed to speak to his father. According to defendant, County
Court should have precluded that statement because it was not included
in the People’s CPL 710.30 notice. Because defendant did not object
to the admission of the statement on that ground, he failed to
preserve his contention for our review (see People v Finley, 42 AD3d
917, 918, mod on other grounds 10 NY3d 647). In any event, defendant
moved for and was granted a Huntley hearing on the noticed statements,
and during the hearing the investigator testified about the unnoticed
statement at issue on appeal. Defendant therefore “waived preclusion
on the ground of lack of notice because [he] was given a full
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                                                         KA 12-01529

opportunity to be heard on the voluntariness of that statement at the
suppression hearing” (People v Dean, 299 AD2d 892, 893, lv denied 99
NY2d 613; see People v Garcia, 290 AD2d 299, 300, lv denied 98 NY2d
730; see generally People v Rodriguez, 21 AD3d 1400, 1401; People v
Griffin, 12 AD3d 458, 459, lv denied 4 NY3d 886).

     We have reviewed defendant’s remaining contentions in his main
and pro se supplemental briefs and conclude that they lack merit.




Entered:   June 13, 2014                        Frances E. Cafarell
                                                Clerk of the Court
