State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 3, 2016 106656 

________________________________

THE PEOPLE OF THE STATE OF 

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

RYAN GUNN,

Appellant.

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Calendar Date: September 9, 2016

Before: McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.

__________

Kindlon Shanks & Associates, Albany (Kathy Manley of

counsel), for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark

of counsel), for respondent.

__________

Aarons, J.

Appeal from a judgment of the County Court of Albany County

(Herrick, J.), rendered January 16, 2014, upon a verdict

convicting defendant of the crimes of criminal possession of a

weapon in the second degree (two counts) and assault in the

second degree.

Defendant was charged in a multi-count indictment alleging

that he shot his neighbor in the arm during an altercation with

him. The jury acquitted defendant of the charges of attempted

murder in the second degree and attempted assault in the first

degree but convicted him of assault in the second degree and two

counts of criminal possession of a weapon in the second degree. 

County Court subsequently sentenced defendant to an aggregate
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prison term of 101⁄2 years to be followed by five years of

postrelease supervision. Defendant appeals. We affirm.

Defendant first argues that the verdict was against the

weight of the evidence. A defendant is guilty of criminal

possession of a weapon in the second degree if he or she intends

to use a loaded firearm against another person or possesses a

loaded firearm outside his or her home or business (see Penal Law

§ 265.03 [1] [b]; [3]). A defendant is guilty of assault in the

second degree when, with the intent to cause physical injury to

another person, he or she injures such person by means of a

deadly weapon (see Penal Law § 120.05 [2]). 

The trial evidence reveals that after the victim left a

grocery store, two individuals, who lived across the street from

him, attacked him and started punching him. After this fight,

the victim saw defendant, who was holding a machete. The two of

them "tussled" and then defendant told the victim that he would

be right back. Upon returning, defendant pulled out a gun from

his pants and the victim ran back to his house. Defendant chased

the victim, pushed the victim's girlfriend out of his way and

shot the victim in his shoulder. The victim was treated at a

hospital for a gunshot wound. 

While defendant premises his weight of the evidence

argument on the lack of credibility of the victim and the

victim's girlfriend, such matters were explored on

cross-examination and presented an issue for the jury's

resolution. Additionally, any inconsistencies in their testimony

in describing the shooting incident were minor and likewise

submitted for the jury's consideration (see People v Heaney, 75

AD3d 836, 837 [2010], lv denied 15 NY3d 852 [2010]). Moreover,

notwithstanding these inconsistencies, both the victim and his

girlfriend unequivocally identified defendant as the shooter. 

Accordingly, viewing the evidence in a neutral light and

according deference to the jury's credibility determinations, we

are satisfied that the verdict was supported by the weight of the

evidence (see People v Capers, 129 AD3d 1313, 1315 [2015], lv

denied 27 NY3d 994 [2016]; People v Soriano, 121 AD3d 1419, 1421

[2014]; People v Moyer, 75 AD3d 1004, 1006 [2010]). 
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We reject defendant's contention that County Court erred in

allowing the People to offer evidence that, when defendant

vacated his apartment following the shooting, his landlord

discovered that he had left behind two dogs, as such evidence was

admissible as indicative of defendant's consciousness of guilt

(see People v Almonte, 118 AD3d 548, 548 [2014], lv denied 24

NY3d 1117 [2015]; People v Harris, 304 AD2d 839, 839 [2003], lv

denied 100 NY2d 582 [2003]; People v De Vivo, 282 AD2d 770, 772

[2001], lv denied 96 NY2d 900 [2001]; cf. People v Lockerby, 178

AD2d 805, 807 [1991], lv denied 80 NY2d 834 [1992]). We further

note that after weighing the probative value of such evidence

against any potential prejudice to defendant, County Court

fashioned an appropriate balance by limiting the evidence to the

mere discovery of the dogs in their cages and precluding the

People from eliciting testimony that one dog had died and the

other was malnourished. Defendant's other contention that

reversible error occurred by the People's failure to seek a

pretrial ruling concerning the admissibility of proof of a

bounced check is without merit inasmuch as the witness's

disclosure that the check had bounced was an unsolicited comment

to the prosecutor's question. In any event, in light of the

overwhelming proof of defendant's guilt, any error in the

admission of this evidence was harmless (see People v Lindsey, 75

AD3d 906, 908 [2010], lv denied 15 NY3d 922 [2010]; People v

Stearns, 39 AD3d 973, 974 [2007], lv denied 9 NY3d 851 [2007]). 

We also find no abuse of County Court's discretion in

denying defendant's request for a missing witness charge. The

People demonstrated that they made diligent efforts to locate the

witness in that the witness was served with a subpoena, a

material witness warrant was issued for his appearance, attempts

to reach the witness by phone and mail proved unsuccessful and

the witness could not be found at either his home or his

relatives' homes. Under these circumstances, although the

witness's testimony was material, County Court properly declined

to give a missing witness charge (see People v Lawing, 119 AD3d

1149, 1150-1151 [2014], lv denied 24 NY3d 1121 [2015]; People v

Rivera, 249 AD2d 141, 142 [1998], lv denied 92 NY2d 904 [1998];

People v McCullers, 119 AD2d 835, 836 [1986], lv denied 68 NY2d

758 [1986]).
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We further disagree with defendant that reversal is

required based upon certain remarks made by the prosecutor during

summation. Initially, the claims premised upon the disparaging

comments by the prosecutor are not preserved due to defendant's

failure to raise a timely objection thereto (see People v Perry,

95 AD3d 1444, 1446 [2012], lvs denied 19 NY3d 995, 1000 [2012]). 

Regarding the preserved claims, even if the prosecutor improperly

interjected his opinion or commented on matters outside the

evidence, given their isolated and fleeting nature, defendant's

prompt objections, which County Court sustained, and County

Court's instructions that such comments be stricken and be

disregarded by the jury, we conclude that defendant was not

deprived of a fair trial by the prosecutor's summation (see

People v Chancey, 127 AD3d 1409, 1412 [2015], lv denied 25 NY3d

1199 [2015]; People v Hughes, 111 AD3d 1170, 1173 [2013], lv

denied 23 NY3d 1038 [2014]; People v Carney, 110 AD3d 1244, 1245

[2013]).

Finally, we are unpersuaded by defendant's claim that the

imposed sentence, which was less than the statutory maximum, is

harsh and excessive. In light of the violent nature of the crime

and defendant's lack of remorse, we discern no abuse of

discretion or extraordinary circumstances warranting a

modification of the sentence (see People v Mayo, 100 AD3d 1155,

1156 [2012]; People v Young, 74 AD3d 1471, 1473 [2010], lv denied

15 NY3d 811 [2010]).

McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court