| People v Stover |
| 2019 NY Slip Op 08734 [178 AD3d 1138] |
| December 5, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Raekwon Stover, Appellant. |
Paul J. Connolly, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Schenectady County (Sira, J.),rendered August 8, 2017, upon a verdict convicting defendant of the crimes of murder in thesecond degree, criminal possession of a weapon in the second degree (two counts) and tamperingwith physical evidence (two counts).
On September 15, 2016, defendant, age 19, entered the home of the victim, age 17, and shother in the head. An investigation revealed that defendant had been coordinating and profitingfrom the victim's activities as a prostitute and, in the month prior to her death, the victim hadmissed "dates," which caused arguments between defendant and the victim. After a week-longjury trial, defendant was convicted of one count of murder in the second degree (count 1), twocounts of criminal possession of a weapon in the second degree (counts 3 and 4) and two countsof tampering with physical evidence (counts 5 and 6). After County Court denied defendant'smotion pursuant to CPL 330.30, defendant was sentenced to a prison term of 25 years to life forhis conviction of murder in the second degree, as well as lesser concurrent and consecutiveprison terms for his other convictions. Defendant appeals, and we affirm.
Defendant argues that the jury verdict is not supported by legally sufficient evidence and isagainst the weight of the evidence.[FN1]"In conducting a legal sufficiency analysis, thisCourt views the evidence in the light most favorable to the People and evaluates whether there isany valid line of 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 law satisfythe proof and burden requirements for every element of the crime charged" (People v Brousseau, 149 AD3d1275, 1276 [2017] [internal quotation marks, brackets and citations omitted]; see People v Lamont, 25 NY3d315, 318 [2015]). "A weight of the evidence review requires this Court to first determinewhether, based on all the credible evidence, a different finding would not have beenunreasonable. Where a different finding would not have been unreasonable, [this Court] mustweigh the relative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony to determine if the verdict is supported by theweight of the evidence" (People vTaft, 145 AD3d 1090, 1091-1092 [2016] [internal quotation marks, brackets andcitations omitted], lv denied 29 NY3d 953 [2017]; see People v Bleakley, 69NY2d 490, 495 [1987]; People vRizvi, 126 AD3d 1172, 1175 [2015], lv denied 25 NY3d 1076 [2015]).
As relevant here, a person is guilty of murder in the second degree when, "[w]ith intent tocause the death of another person, he [or she] causes the death of such person" (Penal Law§ 125.25 [1]). A person is guilty of criminal possession of a weapon in the seconddegree when, "with intent to use the same unlawfully against another, such person. . . possesses a loaded firearm" (Penal Law § 265.03 [1] [b]). A personis also guilty of criminal possession of a weapon when "such person possesses any loadedfirearm" (Penal Law § 265.03 [3]). "A person is guilty of tampering with physicalevidence when . . . [b]elieving that certain physical evidence is about to be producedor used in an official proceeding or a prospective official proceeding, and intending to preventsuch production or use, he [or she] suppresses it by any act of concealment, alteration ordestruction" (Penal Law § 215.40 [2]).
The victim's mother (hereinafter the mother) testified to the events of the night that thevictim was murdered. She explained that she was at her apartment when the victim came homebetween 10:00 p.m. and 11:00 p.m. and ate spaghetti before going to her room. While the motherwas in bed, she heard a knock on the apartment door. She asked who was at the door and a voiceresponded by asking for the victim, at which time the mother called out to the victim to answerthe door. The mother and the victim met in the hallway and the mother returned to her bedroom.The mother explained that she was in bed, "nodding off," when she heard a gunshot. The motherimmediately went to the victim's bedroom and saw defendant standing over the victim.[FN2]The mother immediately left thebedroom, retrieved her cell phone and called 911. While the mother was on the front porchspeaking with 911, she saw defendant "busting out" of a nearby residence and running away. Themother testified that, in the two months preceding the incident, she had seen defendant at herhouse with the victim approximately five times. The mother's boyfriend testified that he waswoken up from a deep sleep when the mother screamed, "They killed my baby." He explainedthat he went to the victim's bedroom and saw the victim lying on her back on a mattress in a poolof blood. He also stated that he believed the victim was "seeing" defendant because he had beenat the house a couple of times. A next-door neighbor, who was friends with the victim, testifiedthat, at approximately 11:00 p.m., she was at home asleep in her bedroom and that she woke upwhen she heard the victim scream for her mother and then heard a gunshot "less than a second"later. She explained that the victim's voice was loud and sounded scared.
Andrew Dannible, an officer with the City of Schenectady Police Department, testified thathe was the first officer at the scene and that, when he went into the back bedroom in theapartment, he found the victim lying on the bed with a gunshot wound to her head. He testifiedthat paramedics arrived at the scene shortly after and pronounced her dead. Christopher North, adetective and crime scene investigator with the City of Schenectady Police Department, testifiedthat, after photographing the scene, he checked the area for physical evidence. North testified thathe photographed, among other things, a bloody hand smear on the wall next to the victim's bodyand four live bullets found in the bedroom where the victim was located. North testified that,after the victim was removed from the room, he found two cell phones underneath her body.William Martin, an investigator with the State Police, testified that he performed extractions onthe two cell phones that revealed multiple conversations between the victim and defendant.Martin testified that several text messages contained in the victim's phone referencedprostitution, and that the Internet history revealed that the phone had been used to access awebsite called Backpage, which is used for prostitution. Martin also testified that severaldifferent email accounts associated with defendant were registered at Backpage. MichaelSikirica, a medical examiner, testified that he performed an autopsy of the victim and ultimatelyconcluded that her cause of death was brain injuries due to a gunshot wound to the head. Hefurther concluded, within a reasonable degree of medical certainty, that the manner of her deathwas homicide.
Several witnesses testified to events that occurred earlier in the evening of the victim'smurder, including the victim's sister who testified that the victim was at her house atapproximately 5:00 p.m. and that she was texting defendant. The sister's neighbor testified thathe had met the victim prior to the night of her murder. He explained that the night of her murderhe heard male and female voices outside of his apartment and that, when he looked to see who itwas, he saw the victim arguing with a young, light-skinned male with braids in his hair. Thesister's neighbor testified that he had seen him before with the victim. Clay Descesare testifiedthat he used Backpage to meet up with girls for casual sexual encounters, and that he respondedto an ad to meet up with a woman, whom he later learned was the victim, the night of hermurder. However, after texting and calling the number associated with the victim to attempt tohire her as a prostitute, she never returned his messages or calls.
Abi Bashton, the mother of one of defendant's children, also testified at trial. Bashtontestified that she lived down the street from the victim and that, on the night of the murder, shehad been working and returned home around 10:40 p.m. Defendant was at her house when shearrived home and left "[t]o get bullets" approximately 10 to 15 minutes after she got home.Bashton stated that defendant did not come back to her house that evening and that, shortly afterhe left, she went up the street to the victim's house, where she heard the mother screaming. Sheleft shortly after and was stopped by an officer, who briefly spoke with her. Bashton testifiedthat, after she spoke with the officer, she texted her brother and told him to get all of defendant'sthings out of her room. Bashton's brother testified at trial that, after Bashton called him, heretrieved an "all black corner store bag" from Bashton's room. He testified that the bag belongedto defendant and contained a box of bullets, which he threw in his "baby mother's neighbor'syard." He testified that he did not see the bag again until he showed it to the police prior to trialand that, when he showed it to the police, it was in the same location where he originally threwit.[FN3]Bashton explainedthat she knew the victim through defendant, that defendant and the victim were involved withone another and that, about a week before the murder, defendant came to Bashton's house andtold her that he had seen the victim with her "baby father with no pants on." Bashton alsotestified that, during the summer of 2016, defendant was making money by "pimping" thevictim.
Bashton further testified that, the day after the murder, defendant came to see her at work andtold her that shooting the victim was an accident that happened while he was cleaning his gun.Gregory Stover, defendant's father, testified that he met the victim once when she came to hishouse with defendant and that he learned from Bashton that the victim had been murdered.Stover testified that, two days after the murder, he had a conversation with defendant, who toldhim that he and the victim "were horseplaying and the gun went off." Stover further stated thatdefendant told him that, when the gun went off, it was in defendant's hand and that the bullet hitthe victim. Defendant also told Stover that he left the victim's residence, ran up the street andtossed the gun. Stover also testified that, after speaking to defendant, he took him to the policestation where defendant was arrested. When defendant was booked at the jail after his arrest, thepolice seized his white sneakers, which were later tested by forensic investigators with the StatePolice. Testimony at trial revealed that a swab taken from blood on defendant's sneaker matchedthe DNA sample from the victim. Antonia Garcia, the mother of two of defendant's children,testified that, during the summer of 2016, defendant told her that he was going to make extramoney by "pimping." She further testified that she had seen defendant carry and clean a gun, butthat she had never seen defendant fool around or "horseplay" with it. She also stated that, threedays after the murder, defendant called her while he was in jail and asked her to delete "stuff offhis e[ ]mail." Garcia explained that she assumed defendant meant pictures that he had on hiscomputer of him with the victim in lingerie. She testified that she deleted the pictures forhim.
Joseph Lewis testified that he met the victim in December 2014 and they became "bestfriends." Lewis stated that he was also friends with defendant and that, when defendant moved tothe same street where the victim lived, Lewis asked him to check up on her. Lewis testified thathe was in the Schenectady County Jail for a few hours in December 2016 and that, when he wasthere, he saw defendant in intake. When Lewis asked defendant what happened to the victim,defendant told him that he had been "pimping" her and that defendant had set her up withsomeone, but that she told defendant she was busy "cooking spaghetti." Lewis explained thatdefendant said that he thought the victim was blowing him off, so defendant went to her houseand they argued. Lewis testified that he asked defendant what happened next; initially, defendanttold him that the gun accidentally went off, but then defendant told him that he shot and killedthe victim. Lewis also testified that he is currently serving a prison term for selling drugs and thathe was promised time off of his sentence if he testified truthfully. Lewis described that, the nightbefore his testimony, three men approached him in the jail because they knew he was testifyingand told him that they did not want him to testify. Lewis explained that, when he told the menthat he did not know what they were talking about, they jumped him and gave him a blackeye.
We turn first to the sufficiency of the evidence as to defendant's conviction for murder in thesecond degree (count 1). Inasmuch as at least three witnesses confirmed that defendant told themhe shot the victim, it was clear that defendant was angry at the victim, and his intent to kill thevictim may be inferred from his actions, the People established the necessary elements for thisconviction (see People v Reese, 166AD3d 1057, 1058 [2018], lv denied 33 NY3d 953 [2019]; People v Broadnax, 52 AD3d1306, 1307 [2008], lv denied 11 NY3d 830 [2008]). Further, the evidence clearlyconfirmed that defendant possessed and used an operable gun to fatally shoot the victim,establishing the elements necessary for a conviction of criminal possession of a weapon in thesecond degree (count 3) (see People vMathews, 134 AD3d 1248, 1250 [2015]). Finally, as to his conviction of tampering withphysical evidence (count 6), although Garcia only inferred that the images that defendant wantedher to delete were the ones of the victim in lingerie, "viewing the evidence in the light mostfavorable to the People, there is a valid line of reasoning and permissible inferences from which arational jury could have found the elements of the crime proved beyond a reasonable doubt" (People v Thompson, 75 AD3d760, 762 [2010] [internal quotation marks and citations omitted], lv denied 15 NY3d896 [2010]; see People v Wilkins,111 AD3d 451, 451 [2013], lv denied 23 NY3d 1044 [2014]). In addition, viewingthe evidence in a neutral light and deferring to the jury's resolution of issues of credibility, wefind that the convictions are not against the weight of the evidence (see People v Chaneyfield, 157 AD3d996, 1000 [2018], lv denied 31 NY3d 1012 [2018]; People v Din, 110 AD3d 1246,1247-1248 [2013], lv denied 22 NY3d 1137 [2014]).[FN4]
Nor do we find merit in defendant'scontention that various evidentiary rulings deprived him of a fair trial. First, County Court didnot err in admitting three photographs that defendant refers to as "gruesome." The photographs atissue depict the victim's bedroom in the aftermath of the shooting, including the bleeding victimlying on bloody bedding. Although we cannot dispute that these photographs are unpleasant toview, they showed the jury the position of the victim's body and the nature of her injuries in away that the other photos were unable to do and, as such, were probative of material issues attrial, including that defendant intended to kill the victim (see People v Greenfield, 167 AD3d 1060, 1063 [2018], lvdenied 32 NY3d 1204 [2019]; People v Thibeault, 73 AD3d 1237, 1243 [2010], lv denied15 NY3d 810 [2010], cert denied 562 US 1293 [2011]). Therefore, because thephotographs were probative and were not admitted "for the sole purpose of arousing the emotionsof the jury and to prejudice defendant," we find no abuse of discretion in County Court'sadmission of these photos (People v Greenfield, 167 AD3d at 1063 [internal quotationmarks, brackets, ellipsis and citations omitted]). Defendant also contends that County Court erredin permitting Stover to testify regarding statements that defendant made to him, as thosestatements violate the parent-child privilege. A parent-child privilege may arise "when a minor,under arrest for a serious crime, seeks the guidance and advice of a parent in the unfriendlyenvirons of a police precinct" (People v Harrell, 87 AD2d 21, 26 [1982], affd 59NY2d 620 [1983]; see People v Edwards, 135 AD2d 556, 557 [1987], lvs denied71 NY2d 968, 72 NY2d 918 [1988]). Here, the privilege would not apply, as defendant was 19years old at the time of the conversation with Stover (see People v Johnson, 84 NY2d956, 957 [1994]; People v Edwards, 135 AD2d at 557). Defendant's remaining challengesto evidentiary rulings, including the admission of part of the 911 phone call made by the motherwherein she states "he killed my baby" and Lewis' testimony that he was assaulted in the jail areunpreserved for our review (see Peoplev Pascuzzi, 173 AD3d 1367, 1375 [2019], lv denied 34 NY3d 953 [2019]; People v Pearson, 151 AD3d 1455,1458 [2017], lv denied 30 NY3d 982 [2017]; People v Abrams, 73 AD3d 1225, 1227-1228 [2010], affd17 NY3d 760 [2011]).
We are similarly unpersuaded by defendant's assertion that County Court erred in denying hisrequest for a circumstantial evidence charge. At trial, defendant requested a circumstantialevidence charge as to counts 1, 3, 5 and 6, asserting that the testimony of Stover, Bashton andLewis did not constitute direct evidence that he had the intent to commit any of those crimes. "Itis well settled that a trial court must grant a defendant's request for a circumstantial evidencecharge when the proof of the defendant's guilt rests solely on circumstantial evidence. Bycontrast, where there is both direct and circumstantial evidence of the defendant's guilt, such acharge need not be given" (People vHardy, 26 NY3d 245, 249 [2015] [citations omitted]; accord People v James, 147 AD3d1211, 1212 [2017], lv denied 29 NY3d 1128 [2017]). Here, County Court gave anevidentiary inference charge "and, therefore, this is not a case where the trial court simplyoutright refused to grant any circumstantial evidence charge at all" (People v James, 147AD3d at 1214). Moreover, defendant's claim, as to murder in the second degree, that acircumstantial evidence charge is necessary is without merit, because "there was both direct andcircumstantial evidence of defendant's guilt, notwithstanding that defendant's intent was a matterto be inferred from the evidence" (People v Hull, 125 AD3d 1099, 1101 [2015] [internal quotationmarks and citation omitted], affd 27 NY3d 1056 [2016]; see People v Daddona,81 NY2d 990, 992-993 [1993]). For the same reasons, we discern no error in the court's refusal togive a circumstantial evidence charge as to counts 3, 5 and 6 (see People v Ash, 162 AD3d 1318, 1322 [2018], lv denied32 NY3d 1002 [2018]; People v Daddona, 81 NY2d at 992-993).
Defendant asserts that County Court violated CPL 310.20 by including annotations on thesecond verdict sheet provided to the jury. Pursuant to CPL 310.20 (2), "[u]pon retiring todeliberate, the jurors may take with them . . . [a] written list prepared by the courtcontaining the offenses submitted to the jury by the court in its charge and the possible verdictsthereon. Whenever the court submits two or more counts charging offenses set forth in the samearticle of the law, the court may set forth the dates, names of complainants or specific statutorylanguage, without defining the terms, by which the counts may be distinguished; provided,however, that the court shall instruct the jury in its charge that the sole purpose of the notations isto distinguish between the counts" (seePeople v Vandebogart, 158 AD3d 976, 979 [2018], lv denied 31 NY3d 1089[2018]; People v McCloud, 121AD3d 1286, 1289-1290 [2014], lv denied 25 NY3d 1167 [2015]). The Court ofAppeals has "held that it is reversible error, not subject to harmless error analysis, to provide ajury in a criminal case with a verdict sheet that contains annotations not authorized by CPL310.20 (2)" (People v Miller, 18NY3d 704, 706 [2012]; see Peoplev Worthington, 150 AD3d 1399, 1400 [2017], lv denied 29 NY3d 1095 [2017]).Moreover, "[t]he basic principle is that nothing of substance can be included that the statute doesnot authorize" (People v Worthington, 150 AD3d at 1400 [internal quotation marks,brackets and citation omitted]).
Here, during the charge conference, the form and content of the verdict sheet was discussedand agreed upon, including a statement at the end that stated that defendant had reviewed theverdict sheet with his attorney and approved the form and content. County Court informeddefendant that neither the statement nor defendant's signature would be included on the copybeing provided to the jury. When the jury first returned a verdict, the jury erroneously includedlesser included charges for counts 1 and 3. To remedy this error, County Court, with theagreement of both parties, instructed the jury regarding how to properly mark the verdict sheet,provided the jury with a new verdict sheet and instructed the jury to resume deliberationsconsistent with the court's instructions. After the jury came back and rendered the new verdict,defendant became aware that the second verdict sheet had the statement that defendant reviewedand approved it, but it did not have defendant's signature. The extraneous statement was not partof the questions posed to the jury; rather, it was at the end of the verdict sheet. It did not changeany of the questions to the jury. Based on the foregoing, we find that the submission to the jury ofthe second verdict sheet with the statement asserting that defendant authorized it, without hissignature, was not reversible error, because the extraneous statement gave no substantiveinformation to the jury about the case and merely indicated that defendant saw the verdict sheet,was aware of his charges and was represented by an attorney (see CPL 310.20 [2];People v Miller, 18 NY3d at 707-710; People v Worthington, 150 AD3d at1400).
Defendant next contends that he received ineffective assistance of counsel because hisattorney failed to object to the admission of exhibit No. 66—an "unduly gruesomephoto"—and failed to preserve defendant's challenge to Lewis' testimony regarding the jailassault. In general, "[i]n order to sustain a claim of ineffective assistance of counsel, a court mustconsider whether defense counsel's actions at trial constituted egregious and prejudicial errorsuch that the defendant did not receive a fair trial. A claim will fail so long as the evidence, thelaw, and the circumstances of a particular case, viewed in totality and as of the time of therepresentation, reveal that the attorney provided meaningful representation" (People v Criss, 151 AD3d 1275,1280 [2017] [internal quotation marks, brackets and citations omitted], lv denied 30NY3d 979 [2017]; see People vRoshia, 133 AD3d 1029, 1031 [2015], affd 28 NY3d 989 [2016]). With respectto counsel's failure to object to the admission of exhibit No. 66, because defense counsel objectedto four other photographs that he deemed to be unduly gruesome, and three of the four of thosephotographs were still admitted, this alone is not tantamount to ineffective assistance of counsel(see People v Chancey, 127 AD3d1409, 1412-1413 [2015], lv denied 25 NY3d 1199 [2015]). As to defense counsel'salleged failure to preserve defendant's challenge to Lewis' testimony regarding the jail assault,"failure to object to this harmless error, without more, 'was not so serious as to compromisedefendant's right to a fair trial' and did not constitute ineffective assistance" (People v Every, 146 AD3d 1157,1165-1166 [2017], affd 29 NY3d 1103 [2017], quoting People v Gunney, 13 AD3d 980,983 [2004], lv denied 5 NY3d 789 [2005]). Moreover, because a review of the recordreveals that defense counsel made appropriate objections, effectively participated incross-examination and made a cogent closing argument, we find that defendant received theeffective assistance of counsel (seePeople v Flower, 173 AD3d 1449, 1457 [2019], lv denied 34 NY3d 931 [2019];People v Lancaster, 143 AD3d1046, 1052 [2016], lv denied 28 NY3d 1147 [2017]). Finally, notwithstandingdefendant's young age of 20 at the time of sentencing, we do not agree with defendant that hissentence was harsh and excessive, given, among other things, the abhorrent nature of defendant'scrimes (see People v Vega, 170AD3d 1266, 1274 [2019], lv denied 33 NY3d 1074 [2019]; People v Collier, 146 AD3d 1146,1152 [2017], lv denied 30 NY3d 948 [2017]).
Egan Jr., J.P., Lynch and Clark, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:Defendant's challenge to thelegal sufficiency of counts 4 and 5 is unpreserved for our review as defendant did not makespecific arguments regarding those counts in his motion for a trial order of dismissal (see People v McCoy, 169 AD3d1260, 1261 [2019], lv denied 33 NY3d 1033 [2019]). Nevertheless, in the course ofreviewing defendant's challenge that the verdict as to all counts is against the weight of theevidence, we "necessarily evaluate whether all elements of the charged crimes were provenbeyond a reasonable doubt" (id.).
Footnote 2:The mother described defendantas a male with a light complexion, two braids in his hair and wearing white sneakers.
Footnote 3:This testimony was corroboratedby a detective with the City of Schenectady Police Department who testified about assisting inthe retrieval of the black bag.
Footnote 4:Inasmuch as all of defendant'sconvictions were "not against the weight of the evidence presented at trial, [they were]necessarily founded upon legally sufficient evidence as well. As such, defendant's challenges tothe grand jury proceeding are precluded to the extent they involve the sufficiency of the evidencepresented or the instructions given to the grand jury" (People v Gaston, 147 AD3d 1219, 1220 n 2 [2017] [citationsomitted]). "Our review of the minutes does not reveal any other errors in presenting the case tothe grand jury that impaired the integrity of the proceeding or caused prejudice to defendant so asto warrant the drastic remedy of reversal" (People v Flower, 173 AD3d 1449, 1454 n [2019] [internalquotations marks and citations omitted], lv denied 34 NY3d 931 [2019]).