State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 25, 2016 105845 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

KOLBY MARTIN,

Appellant.

________________________________

Calendar Date: January 6, 2016

Before: McCarthy, J.P., Garry, Rose and Devine, JJ.

__________

James P. Milstein, Public Defender, Albany (Theresa M.

Suozzi of counsel), for appellant.

P. David Soares, District Attorney, Albany (Brittany L.

Grome of counsel), for respondent.

__________

Rose, J.

Appeal from a judgment of the Supreme Court (Lamont, J.),

rendered June 22, 2012 in Albany County, upon a verdict

convicting defendant of the crimes of attempted murder in the

second degree, criminal use of a firearm in the first degree and

criminal possession of a weapon in the second degree (three

counts).

Following a jury trial, defendant was convicted of

attempted murder in the second degree, criminal use of a firearm

in the first degree and criminal possession of a weapon in the

second degree (three counts) for his role as the shooter in a

drive-by shooting. He was sentenced as a second felony offender

to an aggregate prison term of 25 years, followed by five years
-2- 105845 

of postrelease supervision. He now appeals. 

Supreme Court's Sandoval ruling "appropriately balanced the

probative value of the proof pertaining to defendant's

credibility against the risk of unfair prejudice" (People v

Portis, 129 AD3d 1300, 1303 [2015], lv denied 26 NY3d 1091 [2015]

[internal quotation marks and citation omitted]; see People v

Sandoval, 34 NY2d 371, 377 [1974]). When the People sought to

use five of defendant's 10 prior convictions to impeach him

during cross-examination, the court precluded inquiry into two of

them and limited the scope of inquiry into the remaining three

convictions to exclude any mention of the underlying facts. 

While two of those three convictions – a 2002 conviction for

criminal sale of a controlled substance in the fifth degree and a

2001 conviction of attempted robbery in the second degree – were

remote in time, "there is no bright-line rule of exclusion based

upon age of conviction" (People v Wilson, 78 AD3d 1213, 1216

[2010], lv denied 16 NY3d 747 [2011]; see People v Portis, 129

AD3d at 1303), and the court correctly noted that both

convictions directly implicated defendant's willingness to put

his own interests above those of society. 

Although defendant's challenge to the legal sufficiency of

the evidence was not properly preserved (see People v Hawkins, 11

NY3d 484, 492 [2008]; People v Briggs, 129 AD3d 1201, 1202

[2015], lv denied 26 NY3d 1038 [2015]), we will evaluate the

adequacy of the proof at trial as part of our weight of the

evidence review (see People v Danielson, 9 NY3d 342, 349 [2007];

People v Andrews, 127 AD3d 1417, 1419 [2015], lv denied 25 NY3d

1159 [2015]). At trial, the People produced an eyewitness who

testified that she saw a vehicle pull up to the curb of a city

street and then heard a series of gunshots fired at two young men

on the sidewalk. As the victims fled, the eyewitness saw blood

on the back of one victim's shirt. A police sergeant, who also

heard the initial shots and observed a driver and a passenger in

the vehicle, testified that he witnessed an arm emerge from the

passenger-side window and fire a handgun at one of the fleeing

victims. The vehicle then sped away and a number of police

vehicles became involved in an extended high speed chase through

city streets, ending in defendant's apprehension. 
-3- 105845 

During the chase, a police detective who had known

defendant for over 10 years clearly observed and identified him

as the passenger in the vehicle. As the detective pursued the

vehicle, he saw it slow down and then speed up again after the

passenger-side door swung open for a moment. The detective

returned to that location, where two loaded and operable handguns

were recovered. At trial, the People's experts linked

defendant's DNA and a shell casing recovered from the scene to

the handguns. Viewing the evidence in a neutral light and

according deference to the jury's credibility determinations, we

find that the verdict was not against the weight of the evidence

(see People v Lanier, 130 AD3d 1310, 1311 [2015], lv denied 26

NY3d 1009 [2015]; People v Miller, 118 AD3d 1127, 1128-1129

[2014], lv denied 24 NY3d 1086 [2014]; People v Molina, 79 AD3d

1371, 1375-1376 [2010], lv denied 16 NY3d 861 [2011]).

In view of defendant's extensive criminal history, his

involvement in a shooting rampage on a city street and his

participation in a high speed chase endangering the lives of

police and the general public, for which he has expressed no

remorse, we reject his claim that Supreme Court's imposition of

the maximum sentence was unduly harsh or excessive (see People v

Matthews, 134 AD3d 1248, 1251 [2015]; People v Griffin, 122 AD3d

1068, 1071 [2014], lv denied 25 NY3d 1164 [2015]). 

McCarthy, J.P., Garry and Devine, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court