| People v Nicholas |
| 2014 NY Slip Op 04529 [118 AD3d 1183] |
| June 19, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJermaine Nicholas, Also Known as Maino, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
D. Holley Carnright, District Attorney, Kingston (Gerard J. Van Loan of counsel),for respondent.
Garry, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered December 7, 2011, upon a verdict convicting defendant of the crimes ofconspiracy in the second degree, intimidating a victim or witness in the first degree,tampering with a witness in the first degree and criminal facilitation in the seconddegree.
In January 2010, the victim testified before an Ulster County grand jury regarding ashooting that he had witnessed involving codefendant Jarrin Rankin, a gang member.Following Rankin's arrest, defendant—a self-admitted gang member—andother gang members and associates close to Rankin began to search for potentialwitnesses. At Rankin's February 2010 arraignment, he discovered that the victim wasgoing to testify against him. A week later, defendant called codefendant Amanda Millerasking to speak with Rankin's brother, codefendant Trevor Mattis, and ostensiblyindicated to Mattis that the victim was at a deli in the City of Kingston, Ulster County.Miller then drove Mattis and codefendants Gary Griffin and Dametria Kelley to the deli.Upon arrival, Griffin provided Mattis with a gun, and the duo met defendant and thevictim in front of the deli. Mattis and the victim then walked away from the deli;defendant and Griffin went to Miller's vehicle. Shortly thereafter, Mattis fatally shot thevictim, returned to Miller's vehicle and fled the scene. Defendant, Mattis, Rankin, Miller,Griffin, Kelley and another codefendant, Rondy Russ, were subsequently charged bysuperseding indictment [*2]with various crimesstemming from their role in the victim's death.[FN1]
County Court, upon defendant's motion, severed defendant's trial from that of hiscodefendants. The court also denied defendant's motion to suppress statements that hemade following his arrest based upon an alleged Payton violation (see Paytonv New York, 445 US 573, 576 [1980]). A jury subsequently found defendant guiltyof the crimes of conspiracy in the second degree, intimidating a victim or witness in thefirst degree, tampering with a witness in the first degree and criminal facilitation in thesecond degree. Defendant was sentenced, as a second felony offender, to concurrentterms, the longest of which was 25 years in prison, and five years of postreleasesupervision. Defendant appeals, and we affirm.
Defendant first contends that County Court erred in admitting hearsay statements byhis alleged coconspirators.[FN2]Where, as here, the People seek to elicitdeclarations made by a coconspirator, a prima facie case of conspiracy must beestablished before such declarations may be admitted. This requires proof "of anagreement to commit a crime and an overt act towards carrying out that agreement" (People v Cancer, 16 AD3d835, 839 [2005], lv denied 5 NY3d 826 [2005]; see People v Caban, 5 NY3d143, 148-149 [2005]; People v Bac Tran, 80 NY2d 170, 179 [1992];People v Berkowitz, 50 NY2d 333, 341 [1980]).[FN3]Here, the People proffered nonhearsaytestimony at trial establishing that the individuals involved in this case were eithermembers of the same gang as Rankin or were associated with Rankin, and that theyfrequently gathered at defendant's apartment. In January 2010, Russ threatened thevictim's father with a razor or box cutter outside of the deli. Rankin was arraigned inFebruary 2010 and, at that time, the People provided him with a witness list that includedthe victim's name. Four days later, a party was held at defendant's apartment duringwhich Rankin called and spoke with both defendant and Mattis, among others.
On the evening of February 9, 2010, Miller was at Griffin's home when defendantcalled and spoke to Mattis. After the call ended, she drove Griffin, Mattis and Kelley tothe deli. Upon arrival, she observed defendant and the victim standing in the doorway ofthe deli. Mattis exited the vehicle, at which point Griffin "slid [a] gun out" to himthrough the right rear window. Surveillance video from the deli captured defendantconversing with the victim prior to the [*3]arrival ofMattis and Griffin. The video also captured the victim and Mattis walking away from thedeli as defendant and Griffin returned to Miller's vehicle. When defendant entered therear of the vehicle, he "slid over into the middle" seat. Upon Griffin's request, Millermade a U-turn and parked a few car lengths from Mattis and the victim, at which pointshe heard two gun shots and then observed Mattis running to her vehicle and defendantopening the rear door for Mattis to enter. The proof showed that the victim was shottwice, including a fatal shot to the back of the head. Based on the foregoing evidence, weconclude that the People established a prima facie case of conspiracy through thenonhearsay testimony of other witnesses and participants, thus permitting the People tointroduce the statements of defendant's coconspirators (see People v Caban, 5NY3d at 148; People v Cancer, 16 AD3d at 839; compare People vConklin, 139 AD2d 156, 162 [1988], lv denied 72 NY2d 1044 [1988]).
Defendant's challenges to the legal sufficiency of the evidence supporting hisconvictions for tampering with a witness in the first degree and criminal facilitation inthe second degree are unpreserved for our review; although he moved for a trial order ofdismissal, he failed to identify any deficiency in the People's proof as to those charges(see People v Hawkins, 11NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]; People v Greenfield, 112AD3d 1226, 1226 [2013]). In any event, were we to consider these challenges, wewould find the evidence legally sufficient to lead a rational juror to conclude that all theessential elements of each crime were proved beyond a reasonable doubt (seePenal Law §§ 115.05, 215.13 [2]; People v Danielson, 9 NY3d 342, 349 [2007]).
As to defendant's challenge to the legal sufficiency of his conviction of conspiracy inthe second degree, the People were required to prove that defendant entered into anagreement with his coconspirators to murder the victim and that, in furtherance of theconspiracy, Mattis killed the victim (see Penal Law §§ 105.15,105.20; People v Arroyo, 93 NY2d 990, 991 [1999]; People v McCoy, 89 AD3d1218, 1221 [2011], lv denied 18 NY3d 960 [2012]). Upon the charge ofintimidating a victim or witness in the first degree, the People were required to adduceproof that defendant intentionally aided Mattis in causing the victim serious physicalinjury for the purpose of preventing him from cooperating with law enforcement or anycourt (see Penal Law §§ 20.00, 215.17 [1]). In addition to thetestimony set forth above, the People adduced proof that, following Rankin's arrest inNovember 2009, Rankin suspected that either the victim or Lee Gray, the victim's closefriend, was cooperating with the police. A recorded telephone call that Rankin madefrom the Ulster County jail at the end of November 2009 indicated that defendant hadbeen tasked with "talk[ing] to" Gray to ascertain whether he was cooperating with thepolice. In December 2009, Rankin directed Russ to "stay on top" of the situation, makingoblique reference to Gray and the victim. In January 2010, Russ questioned the victim'sfather about the victim's whereabouts; when the father failed to disclose the victim'slocation, he threatened to "kill his whole family." Kelley subsequently informed Rankinthat she was discussing the matter with defendant, among others, and that "[n]obodykn[ew]" where the victim was located. Kelley disclosed to Rankin, however, that she hadlearned that the victim had written "a statement against [Rankin]." The next day, Rankininstructed Kelley to tell Russ that he needed to ensure that the victim "don't resurface."Suspecting that the victim was hiding out in the Village of Lake George, Warren County,Mattis told Rankin that he was going to Lake George and that "everything [was] undercontrol."
The People adduced further proof that, although Miller did not overhear thetelephone conversation between defendant and Mattis on the evening of the incident,after Mattis ended the phone call, he instructed Miller to "drive to [the] Cedar Street storeASAP." Miller testified that [*4]she, Mattis and Kelleywent out to her vehicle and, when Griffin entered the vehicle, he stated that he "broughtthe hammer," i.e., the gun. Although Miller and Kelley each testified that no one had everpreviously mentioned shooting or killing the victim, viewing the proof in the light mostfavorable to the People (see People v Kancharla, 23 NY3d 294, 302-303 [2014]; People v Reed, 22 NY3d 530, 534 [2014]), we find thatthere is a valid line of reasoning and permissible inferences from which a rational jurycould have found the elements of conspiracy in the second degree (see People v Booker, 53 AD3d697, 703 [2008], lv denied 11 NY3d 853 [2008]; People v Ballard, 38 AD3d1001, 1003 [2007], lv denied 9 NY3d 840 [2007]) and intimidating a victimor witness in the first degree proved beyond a reasonable doubt (see Penal Law§§ 20.00, 215.17 [1]; cf. People v Degiorgio, 36 AD3d 1007, 1008 [2007], lvdenied 8 NY3d 921 [2007], cert denied 552 US 999 [2007]; People v Lyons, 4 AD3d549, 552-553 [2004]).
Defendant further contends that the police lacked probable cause to arrest him andthat he was subject to an illegal warrantless arrest in his home. A warrantless entry intoan individual's home for the purposes of making an arrest is " 'presumptivelyunreasonable' " (People v Molnar, 98 NY2d 328, 331 [2002], quotingPayton v New York, 445 US at 586; accord People v McBride, 14 NY3d 440, 445 [2010],cert denied 562 US &mdash, 131 S Ct 327 [2010]); absent exigent circumstancesor consent, the police are prohibited from entering an individual's home for such purpose(see People v Levan, 62 NY2d 139, 142 [1984]; People v Daly, 180AD2d 872, 873 [1992], lv denied 79 NY2d 1048 [1992]). However, it is alsowell settled that a third party with ostensible authority may grant consent to the entry (see People v Read, 74 AD3d1245, 1246 [2010]; Peoplev Faulkner, 36 AD3d 1071, 1072 [2007]; People v Daly, 180 AD2d at874). Evidence at the suppression hearing established that, prior to defendant's arrest,Mattis had confessed to killing the victim, the police had identified defendant as one ofthe individuals who was with the victim and Mattis just prior to the shooting, and Millerhad informed the police about the circumstances precipitating the victim's death. Thisevidence amply supports County Court's conclusion that the police had probable cause toarrest defendant (see generally People v Maldonado, 86 NY2d 631, 635 [1995];People v Stroman, 106AD3d 1268, 1269 [2013], lv denied 21 NY3d 1046 [2013]). After gatheringthis information, the police went to locate defendant at an apartment where a codefendanthad told them defendant could be found. Robert Henry, a detective with the KingstonPolice Department, testified that, upon receiving no response from that apartment, heknocked on the door of the adjoining apartment. Tenant Kellyann Sanchez opened thedoor. Henry identified himself and the others as police officers, and stated that they werelooking for defendant. Sanchez told them that defendant was upstairs sleeping. Henrytestified that he then asked to speak with him. She responded by taking a step back,raising her hands in the air with palms facing forward, stating "do whatever you need todo" and stepping away from the front door, thus allowing the officers to enter. Sancheztestified at the suppression hearing that she did not provide consent for the police toenter; County Court found that Sanchez's account was not credible and, instead, creditedHenry's version of the events. According appropriate deference to those credibilitydeterminations (see People v Prochilo, 41 NY2d 759, 761 [1977]), we find thatCounty Court properly determined that Sanchez consented to the officers' entry (see People v Sigl, 107 AD3d1585, 1587 [2013], lv denied 21 NY3d 1077 [2013]; People vNelson, 292 AD2d 397, 397-398 [2002]; People v Washington, 209 AD2d817, 819 [1994], lv denied 85 NY2d 944 [1995]).[FN4][*5] Peters, P.J., Stein, Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Mattis's conviction for,among other things, murder in the first degree, for which he was sentenced to a prisonterm of life without parole, was affirmed by this Court (People v Mattis, 108 AD3d872 [2013], lv denied 22 NY3d 957 [2013]). Rankin's conviction forconspiracy in the second degree, for which he was sentenced to a prison term of12
Footnote 2:This argument wasproperly preserved by a motion in limine and appropriate objections at trial.
Footnote 3:To the extent thatPeople v Rossney (178 AD2d 765, 766-767 [1991], lv denied 79 NY2d1007 [1992]) held otherwise, it is overruled.
Footnote 4:Defendant argues thatthere were no exigent circumstances justifying the warrantless entry, but County Courtfound that the roommate had consented; the People did not need to establish both (see People v Gardner, 45AD3d 1371, 1371 [2007], lv denied 9 NY3d 1033 [2008]; People vDaly, 180 AD2d at 873-874).