| People v Taylor |
| 2015 NY Slip Op 08873 [134 AD3d 1165] |
| December 3, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vPaul J. Taylor, Appellant. |
Paul J. Connolly, Delmar, for appellant.
Kristy L. Sprague, District Attorney, Elizabethtown (James E. Martineau Jr. ofcounsel), for respondent.
Lahtinen, J.P. Appeal from a judgment of the County Court of Essex County (Meyer,J.), rendered December 23, 2013, upon a verdict convicting defendant of the crimes ofmurder in the second degree, gang assault in the first degree and criminal possession of aweapon in the third degree.
In August 2012, defendant, together with Michael Rivers and Scott Denno, allegedlycaused the death of the victim, Robert Rennie, by repeatedly and viciously kicking him ashe lay on a street in the Village of Keeseville, Essex County. Defendant was indicted oncharges of murder in the second degree, gang assault in the first degree and criminalpossession of a weapon in the third degree. A jury convicted him on all threecounts.[FN*] Hewas sentenced, as a second felony offender, to concurrent prison terms of 25 years to lifeon the murder and gang assault convictions and, consecutive thereto, 3
Defendant initially argues that his murder conviction was not supported by legallysufficient evidence and was against the weight of the evidence. When considering thelegal sufficiency of the evidence, we view the evidence in the light most favorable to thePeople and [*2]evaluate whether "there is any valid lineof reasoning and permissible inferences which could lead a rational person to theconclusion reached by the jury on the basis of the evidence at trial and as a matter of lawsatisfy the proof and burden requirements for every element of the crime charged"(People v Bleakley, 69 NY2d 490, 495 [1987] [citation omitted]; see People v Ramos, 19 NY3d133, 136 [2012]). In a weight of the evidence review, where, as here, a differentconclusion would not have been unreasonable, we "must, like the trier of fact below,weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Romero, 7 NY3d633, 643 [2006] [internal quotation marks and citations omitted]). The focus ofdefendant's argument is that the evidence did not demonstrate that he intended to kill thevictim. "Because intent is an invisible operation of the mind, direct evidence is rarelyavailable" (People vRodriguez, 17 NY3d 486, 489 [2011] [internal quotation marks, brackets andcitations omitted]) and, thus, "it may be inferred from a defendant's conduct and thesurrounding circumstances" (People v Callicut, 101 AD3d 1256, 1258 [2012], lvdenied 20 NY3d 1096 [2013] [internal quotation marks and citation omitted]).
Proof at trial included that defendant, Denno and Rivers believed that the victim hadbeen physically assaulting Rivers' cousin, Samantha Lacroix. Lacroix had an ongoingrelationship with the victim, she had also recently had a brief relationship with defendant,and defendant desired to continue his relationship with Lacroix. Defendant, Denno,Rivers and Rivers' wife—Angela Rivers—were in the vicinity of Lacroix'sapartment when Rivers and Denno began a physical altercation with the victim. AsRivers and the victim started to fist fight, defendant reportedly attacked the victim frombehind knocking him to the ground and defendant—knowing that he was wearingsteel-toed boots—commenced kicking the victim. Rivers and Denno joined thekicking, although their kicks were described by Angela Rivers as being not as violent asdefendant's. Eventually Rivers and Denno stopped kicking the victim, but defendantcontinued to kick the victim, disregarding the admonition of the others at the scene tostop, including a warning that he was going to kill the victim. Defendant repeatedlykicked the victim with such force that the victim's body would come off the ground.Defendant was about 6 feet 4 inches tall and weighed well over 200 pounds, whereas thevictim was 5 feet 7 inches tall and weighed less than 120 pounds. Although the victimwas able to leave the immediate area when the attack ceased, he quickly succumbed tohis injuries and died. Following the attack, defendant bragged about how hard he hadkicked the victim with his steel-toed boots, and he told Lacroix later that night that shewould not have to worry about the victim knocking on her door anymore. Blood ondefendant's boot was consistent with the victim's DNA.
The forensic pathologist who performed an autopsy on the victim described thevictim's body as having what appeared to be a series of footwear impressions. He statedthat the victim had a large quantity of blood—about a quarter of all hisblood—in his abdominal cavity. The victim's many injuries included, amongothers, collapsed lungs, over 20 fractures of his ribs and a fractured thyroid cartilage inhis neck. The various lacerations suffered by the victim included a five-inch tear of hisliver. The pathologist opined that the victim's cause of death was internal hemorrhageand the collapse of both lungs due to multiple traumatic blunt force injuries. He statedthat, without medical attention, both injuries could have independently caused thevictim's death and that, while the victim could have walked a short distance aftersustaining the injuries, he would not have survived for more than 15 minutes. Viewedmost favorably to the People, the evidence regarding the circumstances of the attack, thenature of defendant's repeated kicking of the incapacitated victim with steel-toed boots,and the severity of the injuries suffered by the victim provided sufficient grounds for thejury to infer that defendant intended to kill the victim (see People v Hill, 115AD2d 239, 239 [1985], lv denied 67 NY2d 884 [1986]). Moreover, after viewingthe evidence in a neutral light while deferring to the jury's credibility determinations, weare unpersuaded that the verdict was against the weight of the evidence.
[*3] Next, defendant asserts that Angela Rivers waspermitted to improperly bolster her testimony. "The term 'bolstering' is used to describethe presentation in evidence of a prior consistent statement—that is, a statementthat a testifying witness has previously made out of court that is in substance the same ashis or her in-court testimony" and "such statements are generally excluded by the hearsayrule, unless a hearsay exception is applicable" (People v Smith, 22 NY3d 462, 465 [2013]; see People v Ludwig, 24 NY3d221, 230 [2014]; People v Buie, 86 NY2d 501, 509-510 [1995]). Here,Angela Rivers gave three statements to police, two shortly after the incident in which shedid not mention what happened to the victim and a third about a month later thatincluded information about the victim. At trial, she acknowledged, without objectionfrom defendant, that she had given the first two statements and that she had omitted inthose statements information about the victim. The People then elicited that she hadgiven a third statement, and she was asked whether she "put in there what happened to[the victim] on Mill Hill Road?" Over defendant's objection on the ground of bolstering,she answered simply, "Yes, I did." She did not testify about the content of her prior thirdstatement. This limited response was not hearsay and did not constitute bolstering (see People v Hampton, 121AD3d 1538, 1539 [2014], lv denied 24 NY3d 1084 [2014]). Nor was itbolstering to acknowledge—without providing information about what wassaid—that she had testified in the earlier trials of Denno and Rivers.
County Court did not err in permitting the People to cross-examine a State Policeinvestigator, who was called by defendant as a witness, regarding certain statementsmade to the investigator by Denno. Although testimonial statements by a nontestifyingwitness are inadmissible as violative of the Confrontation Clause, "a defendant can openthe door to the admission of evidence otherwise barred by the Confrontation Clause" (People v Reid, 19 NY3d382, 387-388 [2012] [internal quotation marks and citation omitted]). Denno, awitness to and participant in the crimes, gave three statements to the investigator, andDenno invoked his Fifth Amendment right not to testify at defendant's trial. Defendantcalled the investigator as a witness to elicit information about Denno's second statement,which was favorable to defendant. This opened the door for the People to cross-examinethe investigator about the content of the two other Denno statements, which providedcontext and were less favorable to defendant.
We are unpersuaded by defendant's argument that it was reversible error for CountyCourt to deny his challenge for cause to a prospective juror. "When a prospective jurorindicates that he or she may not be able to remain impartial in the event the defendantdecides not to testify, the potential juror may be selected to serve only if the court elicitsan unequivocal guarantee that he or she will follow the court's instructions regarding thelaw and render an impartial verdict" (People v Boddie, 126 AD3d 1129, 1131 [2015] [citationsomitted]). Defense counsel asked a prospective juror whether she "might take a negativeinference" if defendant did not testify, and the juror responded: "I can't say that for sure,but I think I would question to myself why he wouldn't testify [on] his own behalf."County Court then stated to the prospective juror: "If you were instructed on what thelaw is, that the law is that you cannot make any unfavorable inference against him if hefails to testify or even if he does not put on any evidence at all, would you follow thatlaw?" The prospective juror stated: "I would have to." This constituted an "unequivocalassurance" from the prospective juror that she would be "able to reach a verdict basedentirely upon the court's instructions on the law" (People v Bludson, 97 NY2d644, 646 [2001]; see People v Chambers, 97 NY2d 417, 419 [2002]).
Defendant contends that his arrest was unlawful in that the arresting officer lackedprobable cause for the arrest and, thus, County Court should have granted his motion tosuppress evidence seized as a result of the arrest. "[E]ven if an arresting officer lackspersonal knowledge sufficient to establish probable cause, the arrest will be lawful if theofficer acts upon the direction of or as a result of communication with a superior orfellow officer or another police [*4]department providedthat the police as a whole were in possession of information sufficient to constituteprobable cause to make the arrest" (People v Ramirez-Portoreal, 88 NY2d 99,113 [1996] [internal quotation marks, brackets and citations omitted]; see People v Stroman, 106AD3d 1268, 1269 [2013], lv denied 21 NY3d 1046 [2013]). As relevanthere, the arresting officer, John Donohue, testified at the suppression hearing that, at thesame time that he was interviewing defendant, other officers involved in theinvestigation were interviewing Lacroix. Donohue received a phone call from one of theother officers informing him that Lacroix was in the process of giving a sworn statementthat defendant had sexually assaulted her and, based upon such information, Donahuearrested defendant. Although Donohue could not recall which officer had contacted himwith the information, the evidence at the hearing sufficiently established that theinformation was relayed by a fellow officer who, in turn, obtained the information from areliable means, i.e., a police interview of the person claiming to have been sexuallyassaulted by defendant (see e.g. People v Ketcham, 93 NY2d 416, 419-421[1999]).
Finally, with regard to defendant's sentence, the People concede—and weagree—that defendant's sentence for criminal possession of a weapon wasstatutorily required to run concurrently with the other sentences under the circumstances(see Penal Law § 70.25 [2]; People v Ross, 34 AD3d 1124, 1126 [2006], lvdenied 8 NY3d 884 [2007]). Otherwise as to sentencing, defendant was properlysentenced as a second felony offender and, in light of his criminal record and the brutalnature of the crime, we find no abuse of discretion or extraordinary circumstanceswarranting a modification thereof (see e.g. People v Winchell, 129 AD3d 1309, 1313 [2015],lv denied 26 NY3d 973 [2015]).
Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment is modified, onthe law, by directing that defendant's sentence for criminal possession of a weapon in thethird degree shall run concurrently with the other sentences, and, as so modified,affirmed.
Footnote *:In separate trials, Riversand Denno were each convicted of manslaughter in the first degree and gang assault inthe first degree.