SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

150 

KA 11-00148 

PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

DARNELL CARTER, DEFENDANT-APPELLANT. 

 

DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (MARY-JEAN BOWMAN OF

COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Niagara County Court (Sara S.

Sperrazza, J.), rendered June 17, 2010. The judgment convicted

defendant, upon a jury verdict, of murder in the second degree (two

counts), robbery in the first degree (two counts), criminal use of a

firearm 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

modified on the law by directing that all sentences imposed shall run

concurrently and as modified the judgment is affirmed. 

Memorandum: On appeal from a judgment convicting him upon a jury

verdict of, inter alia, two counts of murder in the second degree

(Penal Law § 125.25 [1], [3]) and one count of criminal possession of

a weapon in the second degree (§ 265.03 [3]), defendant contends that

the evidence is legally insufficient to establish his guilt either as

a principal or as an accomplice. 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, the People presented

video evidence that defendant and others met in a mini-mart, where

defendant pantomimed the firing of a handgun. Other video evidence

establishes that, shortly thereafter, defendant and a group of young

men exited the mini-mart, and defendant pulled his scarf over his face

and walked quickly in the direction of the victim. The People also

presented witnesses who testified that the group of men, with

defendant in the lead and firing a handgun, chased the victim down the

street. The victim’s body was found the next morning, but his jewelry

was missing and his pockets were turned out. The Medical Examiner

testified that he died from a gunshot wound. Two of defendant’s

accomplices sold the jewelry at a pawn shop. In addition, defendant
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KA 11-00148 

told a Niagara Falls Police Captain that he knew the other men planned

to rob the victim and that he accompanied them in the event that a

fight would occur. Consequently, there was evidence from which the

jury could have reasonably inferred that defendant and his accomplices

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 [accomplices] to do so” (People v

Morris, 229 AD2d 451, lv denied 88 NY2d 990). Furthermore, 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). 

In addition, defendant contends that County Court erred in

permitting the People to impeach their own witness. Even assuming,

arguendo, that the court erred in permitting the impeachment, we

conclude that any error is harmless (see generally People v Crimmins,

36 NY2d 230, 241-242). The evidence of guilt is overwhelming, and

there is no significant probability that defendant otherwise would

have been acquitted (see People v Saez, 69 NY2d 802, 804; People v

Cartledge, 50 AD3d 1555, lv denied 10 NY3d 957; People v Rodriquez, 24

AD3d 1321, lv denied 6 NY3d 817). Defendant’s contention regarding

the court’s refusal to suppress evidence seized from his house

pursuant to a search warrant is moot because the People did not seek

to introduce any such evidence at trial (see generally People v

Wegman, 2 AD3d 1333, 1335, lv denied 2 NY3d 747; People v Burnett, 306

AD2d 947, 948; People v Falcon, 281 AD2d 368, 368-369, lv denied 96

NY2d 901). 

We conclude, however, that the sentence is illegal insofar as the

court directed that the sentence imposed for criminal possession of a

weapon in the second degree shall run consecutively to the concurrent

sentences imposed for the two counts of murder in the second degree

(see People v Ramsey, 59 AD3d 1046, 1048, lv denied 12 NY3d 858;

People v Fuentes, 52 AD3d 1297, 1300-1301, lv denied 11 NY3d 736). 

We therefore modify the judgment accordingly. “ ‘Although this issue

was not raised before the [sentencing] court or on appeal, we cannot

allow an [illegal] sentence to stand’ ” (People v Davis, 37 AD3d 1179,

1180, lv denied 8 NY3d 983). As relevant here, the sentence is

illegal because, “[p]ursuant to Penal Law § 70.25 (2), ‘[w]hen more

than one sentence of imprisonment is imposed on a person for two or

more offenses committed through a single act or omission, . . .’ the

sentences, with an exception not relevant here, must run concurrently. 

Based on the evidence presented at trial, . . . ‘the court has no

discretion; concurrent sentences are mandated’ ” (People v Roundtree,

75 AD3d 1136, 1138, lv denied 15 NY3d 855, quoting People v Hamilton,

4 NY3d 654, 658; see People v Cromwell, 71 AD3d 414, 415, lv denied 15

NY3d 803; People v Mercer, 66 AD3d 1368, 1370, lv denied 13 NY3d 940). 

Here, “[t]here was no evidence of intended use of the weapon against

another apart from its use in the killing of the murder victim”

(People v Boyer, 31 AD3d 1136, 1139, lv denied 7 NY3d 865, amended on

other grounds 87 AD3d 1413; see People v Wright, ___ NY3d ___, ___

[June 5, 2012]). As modified, the sentence is not unduly harsh or
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KA 11-00148 

severe.

We have considered defendant’s remaining contention and conclude

that it is without merit. 

All concur except GORSKI, J., who is not participating.

Entered: June 15, 2012 Frances E. Cafarell

Clerk of the Court