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People v. Parker2/7/2003
This opinion is uncorrected and subject to revision before publication in the Official Reports. <--text--> (*1)
OPINION AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by directing that the sentence imposed on count seven shall run concurrently with the sentence imposed on count one and as modified the judgment is affirmed.
Defendant appeals from a judgment convicting him following a jury trial of murder in the first degree (Penal Law § 125.27 ), attempted murder in the first degree (§§ 110.00, 125.27 ), aggravated assault upon a police officer (§ 120.11), criminal possession of a weapon in the second degree (former § 265.03 ), and criminal possession of a weapon in the third degree (§ 265.02 [former (4)]). County Court sentenced defendant to life imprisonment without parole on the murder count, 25 years to life on the attempted murder count, 12½ to 25 years on the aggravated assault count, 7½ to 15 years on the second degree weapon possession count, and 3½ to 7 years on the third degree weapon possession count. The sentence on the murder count is to run (*2)consecutively to the sentence on the attempted murder count, and the other three sentences are to run concurrently with the sentence on the attempted murder count. Except for a technical modification of defendant's sentence, we affirm.
I. Factual Background
On April 9, 1997, at approximately 12:45 A.M., two City of Buffalo police officers responded to a call concerning a stolen car. As they turned from East Parade Street onto Northampton Street, the officers observed a Ford Explorer being driven toward them, and they noticed an African-American man wearing a dark jacket, black sweatshirt, and dark pants crossing the street. One of the officers twice directed the man to stop, and when the man did not comply, the officer exited the patrol car. The other officer also exited the patrol car and, as he walked around the back of the car, he saw a muzzle flash come from the direction of the perpetrator and heard his fellow officer groan. Upon realizing that he himself had been shot in the right ankle, he radioed for police assistance, gave a description of the perpetrator, and advised in which direction the perpetrator had fled. The fellow officer died later that night of a gunshot wound.
The following day, police searched the neighborhood and recovered a jacket, a pager, a probation officer's business card, and a cap, all of which were linked to defendant at trial. The police also recovered the gun and some bullets. The most damaging evidence at trial came from the two passengers in the Ford Explorer at the time of the shooting. One of the passengers had known defendant for a couple of years and had recognized him on the night of the shootings; she testified that defendant fired his gun first and that the police officer returned fire. The other passenger had known defendant for seven years and, having had a clear view of defendant's face, had no trouble identifying defendant. He did not, however, know whether defendant or the officer had fired first. Additional circumstantial evidence supporting the identification testimony came from a witness who had known defendant for five years; approximately five seconds after hearing 10 or 11 gunshots, the witness saw defendant running down the street, wearing a black leather coat and blue jeans and carrying a gun in his hand.
Defendant was arrested and indicted, and the People thereafter filed a notice of intent to seek the death penalty. Upon trial, the jury found defendant guilty of, inter alia, murder in the first degree, and determi
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