ALBANY COUNTY — “You can yell ‘bang’ in your loudest voice, and nobody’s going to get shot,” Terence Kindlon, attorney for Tasheem Maeweather, told The Enterprise, after an appeals proceeding on March 27 before the justices of the Appellate Division of the Third Judicial District.

Maeweather had been charged with firing a gun in a crowded Crossgates Mall in Guilderland on Nov. 12, 2016.

Kindlon argued in court — at the middle level of the state’s three-tiered system — that the verdict handed down by a jury in Albany County Court in May 2017 against Maeweather “just didn’t make sense.”

No one was injured, and no weapon was ever found.

A jury had found Maeweather not guilty of three of four counts against him: attempted murder, attempted assault, and criminal possession of a firearm, before Judge Roger McDonough.

But the jury found Maeweather guilty of the lowest charge — reckless endangerment.

Assistant District Attorney Vincent Stark told The Enterprise in the courtroom hallway that, if there had been better surveillance video in the mall that day, there might not have been any need for a trial. “I think it would have been clear,” he said.

Stark said that a decision typically comes in an appeals case in six to eight weeks.

Maeweather was 21 on June 2017 when he was sentenced to three-and-a-half to seven years for reckless endangerment, a felony, to be served consecutively with the nine years he was already serving on probation violations. Maeweather was represented in the murder trial by Lee Kindlon, Terence Kindlon’s son.

At Maeweather’s sentencing, McDonough had discussed a motion made by Lee Kindlon,  who argued that the guilty verdict on the reckless-endangerment charge was undermined by the acquittal on the weapons charge.

McDonough said that, while there was what he called a “factual insufficiency” — conclusions that would seem to be factually inconsistent — factual insufficiency and legal insufficiency are not the same thing. Juries are allowed to show mercy, and they are allowed to compromise in order to reach a unanimous verdict on each count, he said.

“Jurors have to agree, and sometimes compromise verdicts are a reality of the system,” McDonough had said at Maeweather’s sentencing.

Maeweather had been out on probation at the time of the Crossgates Mall incident. He had been convicted a year earlier of criminal possession of a controlled substance, a felony, but had been sentenced by Judge Peter Lynch to five years of probation, instead of jail time.

In December 2016, Maeweather was charged with probation violations for using marijuana and for leaving Albany County without permission, to go to Schenectady and Troy; in the probation-violation case, Lynch vacated Maeweather’s earlier sentence and imposed the maximum possible for both the probation violations and the underlying drug charge, and he noted that he was taking into account the four felony charges against Maewaether in the Crossgates Mall incident.

In the courtroom

On March 27, Terence Kindlon argued, as his son had at the sentencing, that the verdict was irrational, because the jury had acquitted Maeweather of having a weapon and, without a weapon, he could not have recklessly endangered anyone.

The jury was unable, Kindlon told the justices, “to find this person who was described as a gang member, to acquit him across the board.” The jury “felt they had to do something,” he said in court.

One justice said in response, “Had this been properly raised, we might have known.”

Terence Kindlon told the justices that Lee Kindlon had made a response at the time.

Terence Kindlon said, “The verdict was delivered, the defense attorney scratched his head for a minute, said, this sounds like an inconsistent verdict case. The justice said, ‘Sit down,’ or words to that effect.”

On March 27, Kindlon argued that Maewaether had been “picked” as the perpetrator because he was wearing an ankle bracelet and was on probation for an earlier drug-sales charge.  

Stark argued that “recklessness” has two elements: reckless disregard and depraved indifference, and that “firing into a crowd is the very definition of reckless disregard.”

Stark said that the jury may have been confused and have felt they couldn’t come to an agreement about whether there was a firearm; he argued that the legal definition of a firearm is narrow and that many types of weapons are not included in it.

Several justices asked why, if Lee Kindlon had been unsatisfied with the verdict, he had not challenged it in court, before the jury left the room.

A justice asked Stark whether, if the defendant had challenged the verdict, the jurists could have changed their minds on the three counts.

Stark said that they could have and added, “I would have made the same decision. I think it was the only decision that made sense.

“I’m not a gambling man, and I don’t think Mr. Kindlon is either,” he added.

Terence Kindlon was asked by a justice if it was a tactical decision. He replied, “I think there’s much wisdom in the idea of quitting while you’re ahead.”

The lawyers

Neither lawyer arguing the appeal had tried the case.

On the prosecution side, Stark replaced Steven Sharp, who had resigned in August 2018 after an internal review verified that Sharp had performed outside criminal-law work on a transactional basis without permission, in violation of office policy, according to Cecilia Walsh, spokeswoman for the Albany County District Attorney’s Office.

For the defense, Terence Kindlon was arguing in place of Lee Kindlon. The elder Kindlon told The Enterprise that he had tried to retire last year but concluded, “I’m not good at being retired.” In his return to work, he said, he is focusing on appellate advocacy and the mentoring of younger lawyers and public defenders, and that he will also be teaching.

The appeals proceeding was the first case Stark was arguing after returning to work. On Jan. 8, Stark was robbed on Chestnut Street in downtown Albany and was struck in the face with a skateboard. Stark told The Enterprise he had suffered a brain injury in the attack.  

He told several gathered reporters, “I’m feeling a lot better. And hopefully, in a few months, I’ll feel a lot more even better.”