Ventimiglia hearing

A Queens Gun Crime Lawyer said that, this is an appeal by the defendant from a judgment of the Supreme Court, Queens County, rendered July 15, 1999, as amended December 2, 1999, convicting him of murder in the second degree (two counts), attempted robbery in the first degree (two counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

A Queens Criminal Lawyer said that, on November 30, 1981, the victim was shot and killed after he confronted a thief in the vicinity of his car. The witness an admitted car thief, testified at the trial that he drove the defendant to the scene, so the defendant could go to a marijuana store referred to as “Star Wars.” He saw the victim’s car up the block, and decided to steal its radio. The victim interrupted him, and a struggle ensued. The victim reached for his ankle, to pull a gun out of his ankle holster. The defendant, whom he testified was not a car thief and not a participant in his attempt to steal the car radio, approached with a gun. At that point, he fled, and heard gunshots. The victim shot the defendant in the foot, and the defendant shot the victim in the face. The victim died from his injuries. The bullet that killed the victim came from either a.38 caliber or nine-millimeter automatic weapon.

A Queens Criminal Possession of Weapon Lawyer said that, five years later, in 1986, the defendant allegedly described his participation in the crime to his childhood friend and long-time criminal associate. He became a government informant after he was sentenced to 50 years imprisonment for an unrelated federal conviction. According to Blake, the defendant claimed that he was stealing the victim’s car in order to drive to Long Island to commit a burglary. When the victim approached, the defendant walked away. The victim followed the defendant, firing gunshots. The defendant returned the fire. These sharply divergent versions of the crime were presented to the jury at the trial. The witness version of the events was supported by three other witnesses who testified that the man who shot the victim was standing outside of and away from the victim’s car. None of these witnesses were able to identify the defendant as the man who shot the victim.

A Queens Gun Crime Lawyer said that, the jury apparently credited the version of the crime set forth in his testimony, since, by its verdict, it necessarily found, contrary to the witness testimony, that the defendant was a participant in the crimes of attempted robbery in the first degree, and felony murder. At the trial, extensive evidence of uncharged crimes was erroneously admitted. Prior to the trial, the People moved for an order permitting them to introduce evidence of uncharged crimes to establish that there was a relationship of trust between the defendant and his witnesses. The court, in a written decision, granted the application without a hearing, on the ground that the evidence “will explain to the jury the depth of the relationship between the defendant and the witnesses, their mutual trust for each other and why the defendant believed he could confide in each of them.” Prior to jury selection, the defense counsel asked the court for a Ventimiglia hearing, so the court could rule on “each one of the criminal allegations.”

During the trial, the defense counsel noted that he had just received information as to the nature of the uncharged crimes which the People intended to introduce during their direct examination of the defendant. The defendant objected to any evidence of uncharged crimes occurring after the defendant allegedly admitted his complicity in the instant offense to him in 1986, on the ground that any criminal conduct occurring after the defendant’s alleged admission in 1986 was irrelevant to the defendant’s state of mind when he allegedly made the admission. The court replied that its prior ruling was not limited “as to before or after” the defendant’s admission to him. The defense counsel asked the court, “in light of your ruling, what is the limiting instruction? When are you going to give a limiting instruction?” The court replied, “Certainly it is not going to be immediately after the testimony. In all probability it will be during the final charge to the jury.”

The issue in this case is whether court erred in convicting defendant of murder in the second degree (two counts), attempted robbery in the first degree (two counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

The legal sufficiency of evidence is established if, “‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt'”. For the charge of depraved indifference murder, the evidence must show “recklessness plus aggravating circumstances”. In this case, the victim, George Spencer, was standing by his car, confronting the witness, who was attempting to steal the car’s radio. The defendant, who accompanied him engaged in a gun battle with while running down the street, thereby exposing bystanders to the risk of harm. In the course of the gun battle, the defendant shot the victim in the face, causing his death, and fled the scene. These facts indicate that the defendant acted with depraved indifference to human life in causing the victim’s death.

There was also legally sufficient evidence to support the defendant’s conviction of felony murder predicated on the attempted robbery of the victim’s car radio. The defendant contends that the People’s witness, who provided the only evidence that the defendant was taking part in the attempted robbery, was not credible. However, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses. Its determination is entitled to great weight on appeal and should not be disturbed unless clearly unsupported by the record.

Evidence of uncharged crimes is not admissible if offered only to raise an inference that a defendant is of a criminal disposition. While the trial court should have held a Ventimiglia hearing and issued a limiting instruction, the testimony of non-accomplice witnesses provided overwhelming corroboration of the testimony of the defendant’s accomplice, and therefore, any error was harmless.

Accordingly, the court held that the judgment is affirmed. The sentence imposed was not excessive. The defendant’s remaining contentions are without merit.

If you are in a similar scenario, seek the assistance of a Queens Possession of a Weapon Attorney and Queens Gun Crime Attorney at Stephen Bilkis and Associates.