| People v Rankin |
| 2015 NY Slip Op 02995 [127 AD3d 1335] |
| April 9, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJarrin Q. Rankin, Also Known as Fat Boy, Appellant. |
George P. Ferro, Albany, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered August 24, 2012, upon a verdict convicting defendant of the crimes ofcriminal possession of a weapon in the second degree (two counts) and criminalpossession of a weapon in the third degree.
Defendant, also known as Fat Boy,[FN1] was indicted and charged with twocounts of criminal possession of a weapon in the second degree and one count ofcriminal possession of a weapon in the third degree. The charges stemmed from anincident that occurred on November 21, 2009 on Henry Street in the City of Kingston,Ulster County, during the course of which Curtis Williams, also known as Black, wasshot in the face. According to Charles King Jr., he and his brother, Lee Gray,encountered Williams on the street shortly before the shooting, at which time Williamsindicated that he had a problem with "Phat Boy."[FN2] After speaking with Williams, Kingand Gray continued walking and [*2]thereafter cameupon defendant outside of 34-36 Henry Street, at which time they advised defendant"that Black said he was going to shoot him." In response, defendant said, "Ain't nobodygoing to do nothing to me or hurt me," pulled out a gun, walked around to the corner ofthe house and cocked the weapon. As Williams approached the residence, defendantsaid, "This is how you want to take it? This is how far you want to go with it?" Williamsthen opened his coat, pulled out a sawed-off shotgun and fired a round. As King and hisbrother ran for cover, King saw defendant fire two or three shots in Williams' direction.Williams was admitted to a local hospital with a gunshot wound to the face, and policethereafter recovered, among other things, a 12-gauge shotgun and various shell casingsfrom the scene of the shooting.
Two days after the shooting, King gave an oral statement to the police and, afterreviewing multiple mug shots, positively identified defendant as the individual whopossessed a hand gun on the day in question and fired that weapon in the direction ofWilliams. The following day, defendant was arrested and, after being advised of hisMiranda rights, spoke with detectives and admitted that he had possessed andfired a gun at the relevant point in time in an effort to protect himself from Williams.King subsequently testified before an Ulster County grand jury in January 2010 and,three weeks later, was shot and killed by defendant's brother, Trevor Mattis.[FN3]
Defendant's subsequent motion to suppress his oral statement to the police and toexclude both King's photo identification of him and resulting grand jury testimony wasdenied in all respects. Following a jury trial, defendant was found guilty as charged andthereafter was sentenced to a prison term of 15 years followed by five years ofpostrelease supervision.[FN4] This appeal by defendant ensued.
We affirm. Initially, we discern no error in County Court's decision to allow thePeople to utilize King's grand jury testimony as part of their case-in-chief. Assummarized in People vSmart (23 NY3d 213 [2014]), "[u]nder the Sixth Amendment of the FederalConstitution and article I, § 6 of the State Constitution, a criminal defendanthas the right to be confronted with the witnesses against him or her. The confrontationright is critical to the fairness of a trial because it ensur[es] the reliability of the evidenceagainst a criminal defendant by subjecting it to rigorous testing in the context of anadversary proceeding before the trier of fact. Given this important right, an unavailablewitness's grand jury testimony, which by definition has not been subjected toconfrontation, generally may not be admitted at trial on the People's direct case.However, where it has been shown that the defendant procured the witness'sunavailability through violence, threats or chicanery, the defendant may not assert eitherthe constitutional right of confrontation or the evidentiary rules against the admission ofhearsay in order to prevent the [*3]admission of thewitness's out-of-court declarations, including the witness's grand jury testimony"(id. at 219-220 [internal quotation marks and citations omitted]; see People vGeraci, 85 NY2d 359, 365-366 [1995]; People v Encarnacion, 87 AD3d 81, 86 [2011], lvdenied 17 NY3d 952 [2011]). Before such testimony may be admitted, "the Peoplemust demonstrate by clear and convincing evidence that the defendant engaged inmisconduct aimed at least in part at preventing the witness from testifying and that thosemisdeeds were a significant cause of the witness's decision not to testify" (People vSmart, 23 NY3d at 220; seePeople v Ali, 123 AD3d 1137, 1137-1138 [2014]; People vEncarnacion, 87 AD3d at 86-87). In this regard, the trial court "may infer therequisite causation from the evidence of the defendant's coercive behavior and theactions taken by the witness in direct response to or within a close temporal proximity tothat misconduct" (People v Smart, 23 NY3d at 220-221; see People vGeraci, 85 NY2d at 370-371; see also People v Leggett, 107 AD3d 741, 742 [2013],lv denied 23 NY3d 964 [2014]).
Here, the People submitted, among other things, audio recordings of phone callsmade between December 2009 and January 2010 while defendant, who was identified asa member of the Bloods street gang, was in jail awaiting trial in this matter. As may bediscerned from the subject phone calls, defendant and certain of his cohorts initiallybelieved that it was Gray who had been in contact with the police and, in that regard,defendant warned that Gray "better not be saying nothing to them f . . . ing. . . police." Similarly, in a phone call with a fellow gang member,defendant—in an apparent reference to King and King's father—stated,"[M]ake sure them [expletive] ain[']t doing nothing either you hear[ ]?"[FN5] After defendant wasadvised that it was King who had implicated him in the shooting, defendant stated, "Andtell . . . [Gray] that since that is his brother that it[']s his job to make surethat s . . . don't happen. And if it happens then he's going to be heldaccountable for it." Similarly, in an apparent reference to King, defendant warned,"[M]ake sure that son stay where the f . . . he at and don't resurface, youhear me?" Finally, during a phone call with Mattis, Mattis assured defendant that he had"everything under control" and that he was "gonna go to bat" for defendant. Whendefendant asked Mattis if Mattis was aware that defendant had been indicted, Mattisreplied, "Yeah I know all that[.] [T]hat's why I'm doing what I'm doing now." Less thantwo weeks later, King was shot to death and, as noted previously, Mattis subsequentlyconfessed to and was convicted of King's murder.
These and other statements made by defendant during the recorded phone calls,coupled with defendant's (and at least one of the caller's) known association with theBloods gang, defendant's corresponding motivation to prevent King from testifying andKing's ensuing demise, "provide[ ] an example of the type of circumstantial proof thatsuffices to satisfy the [People's] foundational burden" (People v Geraci, 85 NY2dat 369). In short, based upon our review of the evidence adduced at the subject hearing,we are satisfied that the People demonstrated, by clear and convincing evidence, that"defendant either was responsible for, or acquiesced in, the conduct that rendered [King]unavailable for trial" (People v Ali, 123 AD3d at 1138). Accordingly, CountyCourt did not err in allowing the People to utilize King's grand jury testimony on theirdirect case.
Nor are we persuaded that County Court erred in denying defendant's motion to[*4]suppress his oral statement to police. "The Peoplebore the burden of proving the voluntariness of defendant's statement[ ] beyond areasonable doubt, including that any custodial interrogation was preceded by theadministration and defendant's knowing waiver of his Miranda rights.Determining whether a statement is voluntary is a factual issue governed by the totalityof the circumstances [and] [t]he credibility assessments of the suppression court inmaking that determination are entitled to deference" (People v Fisher, 126 AD3d 1048, 1049 [2015][internal quotation marks and citations omitted]). Here, two detectives from the KingstonPolice Department testified as to the circumstances under which defendant wasapprehended, transported to the police station and questioned. In this regard, one of thedetectives testified that he advised defendant of his Miranda rights prior to anyquestioning, and that defendant, in turn, orally indicated that he understood his rights andwas willing to speak with the detective. According to the detective who intervieweddefendant, defendant thereafter gave an oral statement wherein he placed himself at thescene of the November 2009 shooting, indicated that someone came after him with a gunand asserted that he "did what he had to do to protect himself." Specifically, the detectivetestified that defendant "demonstrated with one of his hands how he held [the] gun andthat he fired [the] gun in hopes of scaring [the victim]." County Court fully credited therelevant detective's testimony on this point and, upon reviewing the transcript of thesuppression hearing, we discern no basis upon which to disturb County Court's findingsas to the voluntariness of defendant's statement. Contrary to defendant's assertion, thefact that he did not execute a written waiver of his Miranda rights does notinvalidate his oral waiver or otherwise render his statement involuntary (see People v Dobbins, 123AD3d 1140, 1140 [2014]; People v Wilkinson, 120 AD3d 521, 521 [2014]; People v Thornton, 87 AD3d663, 664 [2011], lv denied 18 NY3d 862 [2011]; People v Saunders, 71 AD3d1058, 1059-1060 [2010], lv denied 15 NY3d 757 [2010]).
Finally, we find no merit to defendant's claim that King's photo identification of himresulted from unduly suggestive procedures. Based upon King's physical description of"Phat Boy," King was presented with a book containing multiple mug shots of blackmales and was "asked . . . to look through the photographs . . .to see if he recognized the person who shot [in the direction of the victim]." Afterreviewing a number of photographs, King selected defendant's picture. To our analysis,the fact that King was asked to review only approximately 20 of the photos contained inthe mug shot book does not establish that the identification procedures employed wereunduly suggestive. In any event, given that King had known "Phat Boy" for "a month ortwo" prior to the shooting, his resulting photographic identification of defendant wasmerely confirmatory (see Peoplev Stevens, 87 AD3d 754, 755-756 [2011], lv denied 18 NY3d 861[2011]). Under these circumstances, County Court properly denied defendant's motion tosuppress King's identification.
McCarthy, J.P., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Although defendant isreferred to throughout the record as "Phat Boy," the indictment lists defendant's alias as"Fat Boy."
Footnote 2:Although King did notknow defendant's "government name," the record makes clear that defendant and PhatBoy are one and the same individual.
Footnote 3:Mattis thereafter wasconvicted of, among other things, murder in the first degree and conspiracy in the seconddegree in connection with King's death (People v Mattis, 108 AD3d 872 [2013], lv denied22 NY3d 957 [2013]).
Footnote 4:In the interim, defendantwas convicted of conspiracy in the second degree for his role in King's murder and wassentenced—as a prior violent felony offender—to a lengthy period ofincarceration (People vRankin, 117 AD3d 1231 [2014], lv denied 24 NY3d 1087 [2014]).
Footnote 5:In this and many of theother calls, the individuals in question were identified either by description or their streetnames. Accordingly, the actual identity of the described individuals, as well as theiralleged affiliation with the Bloods gang, was provided by various members of the localpolice department.