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Murder conviction stands in Buffalo bus driver’s killing

By: Denise M. Champagne//October 13, 2015

Murder conviction stands in Buffalo bus driver’s killing

By: Denise M. Champagne//October 13, 2015//

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A second-degree murder charge will stand against a Buffalo man convicted on circumstantial evidence of firing the shot that killed another man sitting on his porch, waiting for a ride to work.

The Appellate Division, Fourth Department on Friday unanimously rejected the claims of Joshua Mitchell, 28, and affirmed his conviction for the Feb. 1, 2012, murder of 39-year-old Brian G. Chapman Jr.

Mitchell, who was also convicted of second-degree criminal possession of a weapon, was represented on appeal by attorney Robert L. Kemp, of the Legal Aid Bureau of Buffalo Inc., who could not be reached for comment Tuesday morning.

The prosecutor on appeal was Erie County Assistant District Attorney Nicholas T. Texido, who argued before the Appellate Division on Sept. 18. District Attorney Frank A. Sedita III could not be reached for comment.

According to the Buffalo News, Chapman was sitting on the porch of his Guilford Street home before sunrise, waiting for a cab to take him to work, when he was fatally shot. He was a bus driver for Niagara Frontier Transportation Authority-Metro.

A police officer patrolling in an unmarked car heard the shots and saw the car leaving the scene, the decision states, People v. Mitchell (2015 NY Slip Op 07411). The officer, Dennis R. Gilbert, had seen Mitchell get out of the car immediately before the shots were fired.

Gilbert was unaware anyone had been shot when he pulled the suspected car over to talk to the occupants about what had just happened. Mitchell told police he had been in the area to buy marijuana when someone started shooting. Mitchell was not read his Miranda warnings at that point and also spoke to two other officers who did not issue Miranda warnings.

At a later hearing, Erie County Court Judge Thomas P. Franczyk ordered statements Mitchell made to the second officer be suppressed, but not what he said to the other officers.

Mitchell got a new attorney who tried to suppress all statements, saying the stop of the car was illegal because there was no probable cause. That motion was denied.

The Appellate Division agreed the statements to the first officer were not subject to suppression because they were elicited as part of an initial investigation of a crime, rather than seeking evidence against Mitchell.

With respect to the third officer, the panel found there was no evidence supporting Mitchell’s contention that that officer failed to make a record of his statement.

The panel consisted of Justice Nancy E. Smith, presiding, and Justices John V. Centra, Joseph D. Valentino, Gerald J. Whalen and Brian F. DeJoseph.

They also agreed with Judge Franczyk’s denial of a suppression hearing, finding the allegations were not timely and were insufficient to warrant a hearing.

In addition, the panel agreed each of Mitchell’s attorneys provided meaningful representation; the evidence, although circumstantial, was legally sufficient to support the jury’s verdict; and the sentence of 25 years to life in prison was not unduly harsh.

Mitchell contended there was no evidence he fired the shot that killed Chapman, but the Appellate Division disagreed, finding a jury could have reasonably concluded Mitchell was the shooter.

“It is well settled that, even in circumstantial evidence cases, the standard for appellate review of legal sufficiency issues is whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the [factfinder] on the basis of the evidence at trial, viewed in the light most favorable to the people,” the panel wrote.

It notes the people established one of the passengers in the car saw Mitchell throw a black object, consistent with a handgun, out of the window as it left the scene of the shooting. A .38-caliber handgun was found near where the other passenger said Mitchell threw an item out the window and an expert testified the bullet recovered from Chapman’s body was fired from the gun.

The same type of ammunition for the weapon was found in the truck of the car and Mitchell had sent a text message to a friend two days before the shooting, saying he was looking for a weapon and .38-caliber ammunition.

Mitchell is housed at the Five Points Correctional Facility in Seneca County.

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