| People v Smith |
| 2019 NY Slip Op 05586 [174 AD3d 1039] |
| July 11, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Nigel Smith, Also Known as Blacka, Also Known as Life,Appellant. |
John R. Trice, Elmira, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.),rendered October 15, 2015, upon a verdict convicting defendant of the crimes of murder in thesecond degree, robbery in the first degree, robbery in the second degree, criminal trespass in thesecond degree and resisting arrest.
On June 15, 2013, an alleged drug dealer (hereinafter the victim) was found dead fromasphyxiation and blunt force trauma. Based on allegations that defendant, along with Calvin Bell,attacked and robbed the victim several hours earlier, purportedly in retaliation for the victimhaving sexually assaulted and robbed Bell's female friend, defendant was charged in a six-countindictment with murder in the second degree, robbery in the first degree, robbery in the seconddegree (two counts), criminal trespass in the second degree and resisting arrest.[FN*] Following a jury trial, defendantwas convicted of all charges except one count of robbery in the second degree. He was sentencedto a prison term of 25 years to life on the murder in the second degree conviction and lesserconcurrent prison terms on the remaining convictions. Defendant appeals, and we affirm.
Defendant argues that his convictions for murder in the second degree, robbery in the firstdegree and robbery in the second degree are not supported by legally sufficient evidence and areagainst the weight of the evidence because the proof did not establish his identity as theperpetrator of those crimes or that the victim's death was caused by either him or Bell. Inaddressing a legal sufficiency argument, we view the evidence in the light most favorable to thePeople and will not disturb the verdict if there is "any valid line of reasoning and permissibleinferences [that] could lead a rational person to the conclusion reached by the fact finder on thebasis of the evidence at trial" (People v Williams, 84 NY2d 925, 926 [1994]; accordPeople v Hines, 97 NY2d 56, 62 [2001]). In a weight of the evidence review, we decidewhether, based on all of the credible evidence, a different finding would have been unreasonableand, if not, we weigh the relative probative force of conflicting testimony and the relativestrength of conflicting inferences that may be drawn from the testimony (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Granger, 166 AD3d1377, 1378 [2018]).
As relevant here, a conviction for murder in the second degree requires evidence that,"[a]cting either alone or with one or more other persons, [the defendant] commit[ted] orattempt[ed] to commit robbery . . . , and, in the course of and in furtherance of suchcrime or of immediate flight therefrom, he [or she], or another participant, if there be any,cause[d] the death of a person other than one of the participants" (Penal Law§ 125.25 [3]). Additionally, "[a] person is guilty of robbery in the first degree whenhe [or she] forcibly steals property and when, in the course of the commission of the crime or ofimmediate flight therefrom, he [or she] or another participant in the crime . . .[c]auses serious physical injury to any person who is not a participant in the crime" (Penal Law§ 160.15 [1]). Further, "[a] person is guilty of robbery in the second degree when he[or she] forcibly steals property and when . . . [h]e [or she] is aided by anotherperson actually present" (Penal Law § 160.10 [1]). Lastly, "[w]hen one personengages in conduct which constitutes an offense, another person is criminally liable for suchconduct when, acting with the mental culpability required for the commission thereof, he [or she]solicits, requests, commands, importunes, or intentionally aids such person to engage in suchconduct" (Penal Law § 20.00).
The trial evidence demonstrated that the victim was found dead in his apartment on themorning of June 15, 2013, around 11:20 a.m. According to a paramedic and a law enforcementagent who responded to the scene, the pockets on the victim's pants were turned inside out, afrying pan was lying next to him and the couch cushions were tossed off the couch. Evidencefrom the ensuing investigation, including testimony from a pathologist, established that thevictim's death was ultimately ruled a homicide. The pathologist asserted that there were bruiseson the victim's forehead, face and knees, a small laceration on his eyebrow andmicro-hemorrhages on his back and armpit. Based upon his examination of the victim's body andthe autopsy, the pathologist stated that the victim had suffered from chest compression and bluntforce trauma to the head. He explained that the victim, who had a full stomach at the time of hisdeath, had aspirated on food matter and opined that the cause of his death was asphyxiation dueto chest compression. The pathologist estimated that the victim's death had occurred around 2:00a.m., several hours before he was found.
Turning to the events that caused the victim's death, an eyewitness testified to being presentat the victim's apartment during the attack. She stated that she heard scuffling in the victim'sliving room and, upon investigation, observed two male assailants, one of whom put a gun to herhead and ultimately forced her onto the ground. She testified that one of the assailants waskneeling on the victim's back, demanding money and "dope," and the other assailant similarlyquestioned her as to the whereabouts of money and drugs. According to the eyewitness, she andthe victim were "stomped" during the attack. She asserted that she was able to flee while theassailants searched the apartment, and she left the victim lying face down on the floor. Forensicevidence established that the eyewitness's DNA was on the victim's shirt and pants, as well as ona cigarette found at the scene.
In addition, Bell's female friend, in whom he was romantically interested, testified that thevictim had been one of her drug dealers, that the victim had robbed and sexually assaulted herduring a prior drug transaction and that Bell had become angry upon learning of the sexualassault. She stated that, several hours before the attack on the victim, she brought Bell to meet upwith defendant and that, later, at Bell's behest, she arranged to buy heroin from the victim. Shetestified, however, that she did not carry out that arranged buy. She asserted that, instead, shedrove Bell to the victim's neighborhood, where Bell ultimately got into defendant's car.According to the friend, she waited in the car and, upon seeing defendant's car 15 to 20 minuteslater, she followed the car to a parking lot, where she observed either defendant or Bell throw aheavy bag into a dumpster. The friend testified that she later saw defendant and Bell countingmoney, that Bell gave her several bags of heroin that were packaged like bags she would receivefrom the victim and that, upon questioning Bell as to what had happened, Bell stated, "yourHomey might not be with us anymore." The friend's account was corroborated in many respectsby surveillance footage that was admitted into evidence, as well as cell phone records of Bell'slocation on the night in question. Further, the brother of defendant's friend testified to variousinculpatory comments made by defendant, including that he and Bell had intended to rob and"beat" the victim in retaliation for the victim having sexually assaulted Bell's friend. Accordingto the brother, defendant told him that the victim had resisted the robbery, causing him to placethe victim in a chokehold and Bell to hit him with a frying pan.
Viewing the foregoing evidence in the light most favorable to the People, we find that thereis a valid line of reasoning and permissible inferences from which a rational juror could haveconcluded that defendant and Bell, his accomplice, forcibly stole property from the victim andthat, during the course of that robbery, he caused the victim's death (see People v Reed, 22 NY3d 530,535-536 [2014]; People v Becoats,17 NY3d 643, 654 [2011]; People vHaggray, 164 AD3d 1522, 1525 [2018], lv denied 32 NY3d 1111 [2018]; People v Elliot, 57 AD3d 1095,1097 [2008], lv denied 12 NY3d 783 [2009]). As to the weight of the evidence, it wouldnot have been unreasonable for the jury to have reached a different verdict, particularly given themany inconsistencies in the testimony given by the brother and Bell's friend (see People vHaggray, 164 AD3d at 1525). However, these credibility issues were fully explored duringcross-examination and were ultimately resolved by the jury in favor of the People (see People v Malak, 117 AD3d1170, 1174 [2014], lv denied 24 NY3d 1086 [2014]; People v Sheppard, 107 AD3d1237, 1239 [2013], lv denied 22 NY3d 1203 [2014]). Thus, when we view theevidence in a neutral light and accord appropriate deference to the jury's credibilitydeterminations, we find that defendant's convictions for murder in the second degree, robbery inthe first degree and robbery in the second degree are supported by the weight of the evidence(see People v Haggray, 164 AD3d at 1525; People v Lalonde, 160 AD3d 1020, 1023 [2018], lv denied31 NY3d 1118 [2018]; People vReed, 97 AD3d 1142, 1144 [2012], affd 22 NY3d 530 [2014]).
Next, defendant asserts that County Court failed to adequately inform him of a potentialconflict of interest arising from defense counsel's prior representation of, and alleged formerrelationship with, Bell's friend. However, our review of the record reveals that County Courtthoroughly explained to defendant the nature of the conflicts and how they could potentiallyimpact defendant's trial if Bell's friend were to testify, and that, despite having been made awareof the risks, defendant knowingly and voluntarily waived the potential conflicts (see People v Simpson, 146 AD3d1175, 1177-1178 [2017], lv denied 30 NY3d 983 [2017]).
Further, we reject defendant's contention that he received ineffective assistance of counsel.Defendant's sole criticism of defense counsel—that he failed to object to certain hearsaytestimony given by Bell's friend—is belied by the record. Indeed, over defendant'sobjections, County Court granted the People's pretrial motion to introduce the challenged hearsaytestimony under the co-conspirator exception to the hearsay doctrine. The friend's trial testimonywas consistent with the testimony contemplated by the People's motion and subsequently ruledupon by County Court prior to trial. Under these circumstances, defense counsel was "notrequired, in order to preserve a point, to repeat an argument that the court ha[d] definitivelyrejected" (People v Finch, 23 NY3d408, 413 [2014]; compare People vJackson, 29 NY3d 18, 23-24 [2017]). Moreover, our review of the record reveals thatdefense counsel's representation, viewed in totality, was meaningful (see People v Umana, 143 AD3d1174, 1176 [2016], lv denied 29 NY3d 1037 [2017]; People v Wells, 101 AD3d 1250,1255 [2012], lv denied 20 NY3d 1066 [2013]).
Lastly, defendant contends that his conviction for robbery in the second degree is aninclusory concurrent count of robbery in the first degree. "Concurrent counts are 'inclusory' whenthe offense charged in one is greater than any of those charged in the others and when the latterare all lesser offenses included within the greater" (CPL 300.30 [4]). A crime is a lesser includedoffense of a charge of a higher degree when it is impossible to commit the greater crime withoutconcomitantly committing, by the same conduct, the lesser offense (see CPL 1.20 [37];People v Acevedo, 40 NY2d 701, 706 [1976]). As charged here, robbery in the seconddegree requires an element not required by robbery in the first degree—namely, thatdefendant be "aided by another person actually present" (Penal Law § 160.10 [1];see People v Acevedo, 40 NY2d at 706; People v Lebron, 305 AD2d 799, 801[2003], lv denied 100 NY2d 583 [2003]). Thus, because it is possible to commit robberyin the first degree without also committing robbery in the second degree, defendant's convictionsfor robbery in the first degree and robbery in the second degree are permissible (see People vAcevedo, 40 NY2d at 706; People v Lebron, 305 AD2d at 801).
To the extent that we have not addressed any of defendant's contentions, they have beenreviewed and found to be without merit.
Egan Jr., J.P., Lynch, Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Although defendant and Bellwere jointly charged, County Court granted defendant's motion to sever the indictment.