| People v Fields |
| 2018 NY Slip Op 02503 [160 AD3d 1116] |
| April 12, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Nahkiem Fields, Also Known as Naz,Appellant. |
Paul J. Connolly, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Devine, J. Appeal from a judgment of the Supreme Court (Milano, J.), rendered June 2, 2015in Schenectady County, upon a verdict convicting defendant of the crimes of criminal possessionof a weapon in the second degree (two counts), assault in the second degree and criminalpossession of a weapon in the third degree.
In the overnight hours of April 29-30, 2014, the victim and his friend emerged from aconvenience store in the City of Schenectady, Schenectady County to find a group of five peopleapproaching them. One of the five accosted the victim and struck him in the head with the butt ofa pistol, after which the group walked away. Some of the group were apprehended soon after theincident, and an investigation into their activities on the night in question led to defendant beingidentified as the assailant and charged in an indictment with various offenses. Pretrial motionpractice occurred in County Court (Drago, J., and Loyola, J.), after which the indictment wastransferred to Supreme Court for a pretrial conference and trial. Following that trial, a juryconvicted defendant of criminal possession of a weapon in the second degree (two counts),assault in the second degree and criminal possession of a weapon in the third degree. SupremeCourt sentenced defendant, as a second felony offender, to an aggregate prison term of 12 yearsto be followed by postrelease supervision of five years. Defendant appeals, and we nowaffirm.
Defendant contends that the verdict was not supported by legally sufficient evidence and[*2]was against the weight of the evidence in two respects. Hefirst asserts that the testimony of two accomplices—who were part of the group thatdefendant was with and gave some detail as to his actions—was not corroborated asrequired by CPL 60.22 (1). The statutory corroboration requirement will be satisfied with proofthat "tends to connect the defendant with the commission of the crime in such a way as mayreasonably satisfy the jury that the accomplice is telling the truth" (People v Sage, 23 NY3d 16, 27[2014] [internal quotation marks and citations omitted]; see People v Furman, 152 AD3d 870, 873 [2017], lv denied30 NY3d 1060 [2017]). The corroborating proof does not need to demonstrate defendant's guilt;instead, "when 'read with the accomplice's testimony, [the proof] makes it more likely that thedefendant committed the offense, and thus tends to connect him to it' " (People vSage, 23 NY3d at 27, quoting People v Reome, 15 NY3d 188, 194 [2010]).
In that regard, the accomplices' accounts of defendant's attack were similar to those providedby the victim and his friend. The victim and his friend could not identify defendant as theassailant, but they described an attacker who resembled defendant and recalled distinctivecharacteristics of individuals with him that matched those given by the testifying accomplices.One accomplice testified that she placed the pistol used by defendant in her purse after the attack,which is where the police recovered it later that night. An examination of the pistol led to therecovery of genetic material from two males. Defendant was not definitively identified as one ofthose males, but was revealed to be 131,000 times more likely to be one than another, randomlyselected African American. This nonaccomplice evidence sufficiently corroborated the accountsof the accomplices and, even if an acquittal on the counts for which defendant was convicted waspossible, we defer to the jury's determination to credit the proof of defendant's guilt and find theverdict to be supported by the weight of the evidence (see People v Garcia, 131 AD3d 732, 733-734 [2015], lvdenied 27 NY3d 997 [2016]; Peoplev Brown, 62 AD3d 1089, 1090-1091 [2009], lv denied 13 NY3d 742[2009]).
Defendant further argues that the dearth of proof as to the physical injury sustained by thevictim left the second-degree assault conviction unsupported by legally sufficient evidence andagainst the weight of the evidence (see Penal Law § 120.05 [2])." 'Physical injury' means impairment of physical condition or substantial pain" (PenalLaw § 10.00 [9]), and whether it was inflicted is ordinarily a question of fact for thejury to resolve (see People v Guidice, 83 NY2d 630, 636 [1994]). The victim testifiedthat he was struck on the left side of the face and that, while he iced the area, he had bruising andswelling for about 10 days and was unable to sleep normally due to the pain. Other witnessestestified to seeing redness and bruising on the victim's face, and the owner of the store outside ofwhich the attack occurred stated that the victim was bleeding in its immediate aftermath. In ourview, this proof was legally sufficient to determine that the victim suffered "more than slight ortrivial pain" as a result of the attack, and the jury's determination to credit it was not against theweight of the evidence (People vChiddick, 8 NY3d 445, 447 [2007]; see People v Mullings, 105 AD3d 407, 408 [2013], lvdenied 21 NY3d 945 [2013]; Peoplev Boyd, 97 AD3d 898, 898-899 [2012], lv denied 20 NY3d 1009[2013]).[FN1]
[*3] Defendant also contends that the People failed todemonstrate their entitlement to an order authorizing the taking of a buccal swab from him.Defendant had been indicted, which established probable cause to believe that he committed acrime, and DNA evidence recovered from the pistol gave a clear indication that materialevidence could be expected to result from a comparison between that evidence and his ownDNA. The issuance of the order was authorized under these circumstances, and County Court(Loyola, J.) did not err in issuing it (see CPL 240.40 [2] [b] [v]; People v Vieweg, 155 AD3d 1305,1308 [2017], lv denied 30 NY3d 1121 [2018]; People v Roshia, 133 AD3d 1029, 1030 [2015], affd 28NY3d 989 [2016]).
As noted above, subsequent DNA analysis did not definitively tie defendant to the geneticmaterial recovered from the pistol. The People accordingly sought to present proof of are-analysis conducted with the TrueAllele Casework System (hereinafter TrueAllele), a computerprogram that subjects a DNA mixture to statistical modeling techniques to infer what DNAprofiles contributed to the mixture and calculate the probability that DNA from a knownindividual contributed to it. Defendant argued that the TrueAllele evidence should be precludedor that the general acceptance of the technique in the scientific community should be assessed viaa Frye hearing. Supreme Court denied the application due to the fact that an extensiveFrye hearing had been conducted on the issue in another criminal case in the same countyand that a determination, issued weeks before the trial in this matter, was rendered finding thatthe procedure was not novel and was generally accepted by the relevant scientific community (People v Wakefield, 47 Misc 3d850 [Sup Ct, Schenectady County 2015]). We acknowledge that the defendant in Peoplev Wakefield (supra) was convicted of various offenses and that he may well attackthe propriety of the Frye determination upon his as-yet-unperfected appeal. Nevertheless,Supreme Court's reliance upon the determination was not an abuse of discretion (see People v LeGrand, 8 NY3d449, 457-458 [2007]; People vGonzalez, 155 AD3d 507, 508 [2017], lv denied 30 NY3d 1115 [2018]),although defendant may wish to revisit the issue should subsequent developments warrant it(see e.g. People v Jones, 128 AD2d 405, 407 [1987], affd 70 NY2d 547[1987]).
The results of the TrueAllele analysis were placed into evidence at trial via the testimony ofMark Perlin, the chief executive officer and chief scientific officer of the corporation thatdeveloped TrueAllele, as well as the author of the report quantifying the probability of defendantbeing a contributor to the DNA mixture recovered from the pistol. He is one of two individualswith access to the proprietary source code of TrueAllele, which is the program's "computer codein [the] original programming language" as written by the software developers (Webster's ThirdNew International Dictionary, Unabridged [Merriam-Webster 2016], source code[http://unabridged.merriam-webster.com/unabridged/source code]). Perlin revealed duringcross-examination that the source code had not been disclosed to the State Police or otherTrueAllele users. Defense counsel then asked Perlin if he could "give the [c]ourt and the jury thesource code," which prompted a successful objection from the People. Defense counsel did notpursue the issue further in cross-examination or demand that Supreme Court compel Perlin toproduce the source code, instead moving to strike Perlin's testimony upon the basis that he wasdeprived of his right to confront and cross-examine Perlin about the source code.
[*4] Defendant has a right under the Federal and StateConstitutions to confront the witnesses against him (see US Const Amend VI; NY Const,art I, § 6) and, as framed at trial, he argued that the absence of the source codeplaced impermissible restrictions on his cross-examination of Perlin (see Delaware vFensterer, 474 US 15, 18 [1985]; People v Montes, 16 NY3d 250, 253 [2011]).[FN2] He overlooks that "theconstitutional right to confront witnesses through cross-examination . . . is notabsolute" (People v Gooley, 156AD3d 1231, 1232 [2017] [citations omitted]; see People v Corby, 6 NY3d 231, 234 [2005]), with "trial judgesretain[ing] wide latitude . . . to impose reasonable limits . . . based onconcerns about, among other things, harassment, prejudice, confusion of the issues, the witness'safety, or interrogation that is repetitive or only marginally relevant" (Delaware v VanArsdall, 475 US 673, 679 [1986]; see Delaware v Fensterer, 474 US at 20).
Defendant's motion for a Frye hearing demonstrated his awareness that the sourcecode was not public and that an expert analysis of it could potentially call the accuracy of theTrueAllele report into question. Defendant could have demanded disclosure of the source code topermit an expert review to probe these "possible infirmities in the collection and analysis of data"used against him (People v Wesley, 83 NY2d 417, 429 [1994]; see CPL 240.20[1] [c]).[FN3] He did not doso, nor did he include the source code in his pretrial request that the People instruct Perlin tobring certain documents with him for purposes of cross-examination. He instead raised the issueduring his cross-examination of Perlin, during which he established that the source code wassecret and that the instructions embodied in it were unknown. Supreme Court drew the line at aquestion regarding Perlin's willingness to produce the source code itself, a belated and prejudicialrequest for raw computer code that, absent an expert interpretation that defendant did not indicatewas forthcoming, would have been meaningless to the jury. Thus, "weigh[ing] the probativevalue of such evidence against the possibility that it would confuse the main issue and misleadthe jury . . . or create substantial danger of undue prejudice to one of the parties," wecannot say that Supreme Court abused its wide discretion in prohibiting defendant from askingPerlin to produce the source code (People v Corby, 6 NY3d at 234-235 [internalquotation marks and citation omitted]; see People v Lippe, 145 AD3d 1035, 1038 [2016], lv withdrawn29 NY3d 999, lv denied upon reconsideration 30 NY3d 1020 [2017]; People v Demagall, 114 AD3d189, 201 [2014], lv denied 23 NY3d 1035 [2014]).
Next, Supreme Court issued a protective order preventing defendant from having copies ofstatements made by the accomplice witnesses with him in jail. The People represented thatdefendant had harassed and implicitly threatened one of the accomplices while both were jailed[*5]and, in the absence of any articulated prejudice flowing fromthe order, we perceive no abuse of discretion in Supreme Court's decision to issue it (seeCPL 240.50 [1]; People v Mileto, 290 AD2d 877, 878-879 [2002], lv denied 97NY2d 758 [2002]; People v Robinson, 200 AD2d 693, 694 [1994], lv denied 84NY2d 831 [1994]). Supreme Court further placed restrictions upon disclosure of the victim's andhis friend's contact information, limiting the former to defense counsel and blocking the latteraltogether. The People disclosed to defendant that neither the victim nor his friend identified himas the assailant after the attack, although the victim pointed to defendant's photograph as one oftwo in an array that resembled the assailant. Assuming without deciding that aspects of thisruling constituted a Brady violation, both men testified at trial, and defendant, who had "ameaningful opportunity to use the allegedly exculpatory material to cross-examine" them, wasnot deprived of a fair trial (People v Cortijo, 70 NY2d 868, 870 [1987]; see People v Carter, 131 AD3d717, 720 [2015], lv denied 26 NY3d 1007 [2015]).
The remaining arguments advanced by defendant may be dispatched without difficulty.Defendant was jailed on unrelated charges during the pendency of these proceedings, andtestimony regarding the retrieval of his cell phone from a storage area in the jail and its transferto the State Police for forensic analysis authenticated and established a chain of custody for thephone sufficient to warrant the admission of the phone and its contents into evidence (see People v Hawkins, 11 NY3d484, 494 [2008]; People vArce-Santiago, 154 AD3d 1172, 1173-1174 [2017], lv denied 30 NY3d 1113[2018]). Lastly, defendant "has failed to demonstrate any extraordinary circumstances or an abuseof discretion warranting a reduction of the sentence in the interest of justice" (People v Williams, 156 AD3d1224, 1231 [2017]).
Garry, P.J., Mulvey and Aarons, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:Legally sufficient proof supportsthe verdict in all respects and, as a result, defendant is precluded from assailing the denials of hisapplications to dismiss the indictment due to "the sufficiency of the evidence presented or theinstructions given to the grand jury" (People v Gaston, 147 AD3d 1219, 1220 n 2 [2017]; seeCPL 210.30 [6]; People v Robinson,156 AD3d 1123, 1128 n 8 [2017], lv denied 30 NY3d 1119 [2018]). Our review ofthe grand jury minutes does not reveal the existence of any "fundamental defect[s]" that impairedthe integrity of the grand jury or prejudiced defendant so as to warrant reversal (People v Wisdom, 23 NY3d 970,972 [2014]; see People v Robinson, 156 AD3d at 1128 n 8; see also People vJohnson, 100 AD2d 134, 143-144 [1984], affd 63 NY2d 419 [1984]).
Footnote 2:Defendant now asserts that hemade an "application [to Supreme Court] for disclosure of the source code." He did nothing ofthe sort and, since the People objected to his efforts to obtain the source code from Perlin, it wasincumbent upon him to do so. To the extent that his argument on appeal is based upon thispremise, it is unpreserved for our review (see People v Medina, 53 NY2d 951, 952[1981]).
Footnote 3:In the absence of any suggestionthat defendant made a demand for production of the source code pursuant to CPL 240.20, we willnot address the intriguing possibilities had he done so (see People v Robinson, 53 AD3d 63, 73-74 [2008], lvdenied 11 NY3d 857 [2008]; Peoplev Jones, 55 Misc 3d 743, 752-753 [Sup Ct, Bronx County 2017]; People v Gills, 52 Misc 3d 903,907-908 [Sup Ct, Queens County 2016]).