SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

584 

KA 11-01018 

PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND DEJOSEPH, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

CHARLES L. MOBLEY, DEFENDANT-APPELLANT. 

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ERIN TUBBS OF COUNSEL),

FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Monroe County (Alex

R. Renzi, J.), rendered January 21, 2010. 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 [3] [felony murder]) in connection with the shooting death of a

non-participant in a home invasion burglary by two masked men. We

conclude that the verdict, when viewed in light of the elements of the

crime as charged to the jury (see People v Danielson, 9 NY3d 342,

349), is not against the weight of the evidence (see generally People

v Bleakley, 69 NY2d 490, 495). Even assuming, arguendo, that a

different verdict would not have been unreasonable, we conclude that

there is no basis upon which to conclude that the jury failed to give

the evidence the weight it should be accorded (see id.). The

eyewitness to the shooting did not identify defendant and could

identify only one of the participants by his voice. The eyewitness

identified, by his voice, the nephew of another witness who observed

him enter the back yard of the victim’s home with defendant. That

witness testified that she was in the room with her brother, defendant

and her nephew when they planned to rob a person staying in a house

across the street. The witness saw her brother give defendant a gun,

and defendant and her nephew then left the house. Through the window,

she watched them go to the back of a house where, she later learned,

one of the residents was fatally shot, and she watched as they ran

back to her house 10 to 15 minutes later and went to the basement with

her brother. The following day, she observed her brother hand

defendant the gun, and he placed it in his pocket. Police witnesses

testified that a canine tracker led the police from the victim’s house
-2- 584 

KA 11-01018 

to the witness’s house, where defendant was found hiding in a bed,

although the police left the house without making any arrests. There

is no basis upon which to disturb the credibility determinations of

the jury (see generally id.).

We reject defendant’s further contention that Supreme Court

failed to provide a meaningful response to a note from the jury during

deliberations asking, “Does [defendant] need to be in the house . . .

to be part of the felony[?]” In response to the court’s statement to

the prosecutor and defense counsel that defendant did not need to be

in the house, defense counsel stated that the People’s theory was that

defendant was the second intruder and that “you can’t have it both

ways.” The court declined to provide a “yes” or “no” answer, and

instead responded to the note by again reading the instructions on

felony murder and accessorial liability. Contrary to defendant’s

contention, the reiteration of those instructions was appropriate

under the circumstances presented here (see People v Santi, 3 NY3d

234, 248-249), and was a meaningful response to the jury’s question

(see People v Malloy, 55 NY2d 296, 302-304, cert denied 459 US 847;

see generally People v O’Rama, 78 NY2d 270, 276). 

Entered: June 13, 2014 Frances E. Cafarell

Clerk of the Court