ALBANY COUNTY — Tasheem Maeweather, convicted of reckless endangerment for an incident in November 2016 when a gun was fired in Crossgates Mall, had his appeal at the state’s middle-level court turned down last month and has applied to have his case heard by the state’s highest court, the Court of Appeals.

“We were disappointed, to say the least,” said attorney Terence Kindlon this week, about the recent decision by the Appellate Division of the Third Judicial Department to uphold a jury’s conviction.

His son, Lee Kindlon, who argued the case before the jury, said this week that the attorneys have applied to have the appeal heard in the state’s highest court, the Court of Appeals.

Appeals to that court are “very limited” and can be made only by appellants who are granted “leave to appeal” by the court, said Terence Kindlon. The state’s Court of Appeals, similar to the Supreme Court on the national level, hears only cases that will set legal precedent or clarify the law.

It may be months before the attorneys learn whether the case will be heard, said the elder Kindlon.

“I still believe, to this day, that Tasheem is innocent and I will continue to fight for his freedom,” said Lee Kindlon this week.

The jury had convicted Maeweather in May 2017 of reckless endangerment even while acquitting him of three other, more serious felony charges: second-degree attempted murder, first-degree attempted assault, and second-degree criminal possession of a weapon.

Maeweather’s attorneys continue to question how he could have engaged in reckless endangerment if, as the jury decided, he didn’t possess a weapon at the mall.

“You can yell ‘bang’ in your loudest voice, and nobody’s going to get shot,” argued Terence Kindlon on March 27 before the justices of the Appellate Division of the Third Judicial District.

Maeweather is currently serving three-and-a-half to seven years in state prison, to be served consecutively to charges imposed after the Crossgates Mall incident.

At the time of the Crossgates Mall incident, Maeweather was on probation, after having been convicted a year earlier of criminal possession of a controlled substance, a felony. At the time of that conviction, Judge Peter Lynch had sentenced Maeweather to five years of probation, instead of jail time.

After Maeweather had been charged in the Crossgates Mall incident, he was charged with probation violations for using marijuana and for leaving Albany County without permission, to go to Schenectady and Troy.

Judge Lynch vacated his own earlier decision about probation and imposed the maximum possible sentence for both the underlying controlled-substance charge and the probation violations.

Lynch noted at the time that he was taking into account the four felony charges against Maewaether in the Crossgates Mall incident, even though the jury trial had not yet occurred, and Maeweather would later be acquitted of three of four charges.

Appellate decision

Associate Justice John Eagan Jr. wrote — and the other four Appellate Division justices concurred — in the May 2019 decision, “Defendant’s conviction was supported by legally sufficient evidence and was not against the weight of the evidence.”

“[A] rational jury could conclude that,” the justice wrote, “by intentionally firing two shots from a handgun in the middle of a busy shopping mall where hundreds of people were present, defendant engaged in reckless conduct creating a grave risk of death to another person.”

The only mall camera to capture the moment of the gunshot was located at the back of the Apple Store, high on the wall, focused mainly on the activity within the store. The figures of the two groups of young men who confronted one another in the hallway outside the store just before the gun was fired were ghostly shadows in the footage, seen almost entirely from the waist down because of the angle of the camera.

Kindlon had argued in the jury trial that the footage did not show which young man shot a gun and told the jury members that they needed to be convinced beyond a reasonable doubt that Maeweather had fired.

“[A]lthough a different verdict would not have been unreasonable, viewing the evidence in a neutral light and deferring to the jury’s credibility determinations, we find that the verdict was supported by the weight of the evidence,” Eagan wrote.

Eagan noted that the defendant’s argument that the verdict was inconsistent — acquitting of the possession of a weapon and convicting on reckless endangerment — was “not preserved for our review, as defendant chose not to raise this argument to Supreme Court prior to the jury being discharged.”

Lee Kindlon said this week that his decision at trial not to raise the argument before the jury was deliberate. He wrote in an email to The Enterprise:

“It was a strategic decision made in the moment. I knew what I had to do to preserve an issue for appeal but I surmised that it might have backfired in the courtroom. That is, had I specifically challenged the jury’s verdict and sent them back in for further deliberations, it was entirely possible that the jury could have come back out and found my client guilty of those charges of which he had just been acquitted.

“At that moment, I had acquittals on three of four charges (and those were the most serious, violent, charges, that carry with them sentences of up to 25 years), and a guilty verdict on a non-violent D felony.”

Kindlon wrote, “We have one more chance before the Court of Appeals.”