| People v Hilts |
| 2020 NY Slip Op 06173 [187 AD3d 1408] |
| October 29, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jeffrey Hilts, Also Known as Jahiem,Appellant. |
Mitchell S. Kessler, Cohoes, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Schenectady County(Sypniewski, J.), rendered September 13, 2017, upon a verdict convicting defendant of thecrimes of criminal possession of a weapon in the second degree and criminal sale of a firearm inthe third degree.
In April 2015, a confidential informant (hereinafter CI) working with the Federal Bureau ofInvestigation (hereinafter FBI) arranged to purchase a firearm from an individual known to himas "Jaheim" and later identified as defendant.[FN1] When the CI arrived at defendant's residencethe following day to complete the sale as arranged, he was told that defendant was not present.An individual later identified as codefendant Kenny Walters completed the sale. Defendant andWalters were charged in separate indictments with criminal possession of a weapon in the seconddegree (two counts), criminal sale of a firearm in the third degree and criminal possession ofstolen property in the fourth degree. Their indictments were joined for trial.
Before trial, the People made a Molineux application for permission to introduceevidence of defendant's and Walters' gang affiliations to explain the relationships among theparticipants to the sale. The People stated that they did not intend to introduce evidenceconnecting either man to criminal conduct that could be associated with gang activities, such asthe sale of narcotics. Over the objections of defendant and Walters, County Court granted theapplication. During the ensuing joint jury trial, defendant and Walters each unsuccessfully movedfor a mistrial when a witness testified that individuals were thought to be "cutting narcotics in theback" of defendant's residence while the subject gun transaction was taking place. Defendant andWalters were each convicted of one count of criminal possession of a weapon in the seconddegree and criminal sale of a firearm in the third degree. Defendant was sentenced as a secondfelony offender to a prison term of 15 years on the criminal possession conviction and a lesserconcurrent term on the sale conviction, each term to be followed by five years of postreleasesupervision. Defendant appeals.
Defendant first contends that the verdict is against the weight of the evidence, arguingthat—in view of his absence at the time of the sale and the alleged unreliability of the CI'stestimony—the People did not prove his involvement beyond a reasonable doubt. At trial,a special agent with the FBI testified that he was a member of a task force that partnered withlocal police departments to target gang activity. He testified that the CI initially approached theSchenectady County District Attorney's office with information related to an ongoing FBIinvestigation, and thereafter worked with the FBI agent for about a year on several cases,including the instant prosecution. According to the FBI agent, the CI's stated motivation forsharing information was revenge against certain individuals; in later testimony, the CI confirmedthis basis, stating the grounds for his anger and wish for vengeance. The FBI agent also describedthe benefits provided to the CI, including the cost of housing, food, clothing, assistance withcertain fines, and a weekly stipend. The CI also received a sentence of time served on a criminalcontempt charge. The FBI agent testified that these benefits were provided without regard to theoutcome of the CI's cases. He acknowledged that the CI had not always followed FBI protocol inother cases, but further stated that the CI had complied with protocols in the current case andothers and had assisted in several successful prosecutions.
The FBI agent testified regarding the CI's gang affiliations and the history of his involvementin this case. The CI was working as an "enforcer" for the Bloods gang, a position in which he,among other things, guarded locations where the Bloods conducted narcotics and firearmstransactions.[FN2] One suchlocation was a grocery store in the City of Schenectady, Schenectady County (hereinafter thestore) that was owned and operated by an individual (hereinafter the owner) who was allegedly aleader of a subgroup of the Bloods known as the United Blood Nation and one of the individualsagainst whom the CI wanted revenge. The FBI agent and his team were monitoring the store andother locations for gang activity and had installed a pole camera to observe activity outside thestore.
The testimony of the FBI agent and the CI established that, in April 2015, the CI called theFBI agent from the store parking lot and advised him that a long-term acquaintance whom the CIknew as Jaheim had offered to sell the CI a handgun with two loaded magazines and a box ofbullets. The pole camera revealed a man and a parked car matching the CI's descriptions. Thejury viewed recorded footage from this camera that appeared to show a conversation betweendefendant and the CI in the parking lot, and then depicted the CI getting into the rear seat of thecar and the car driving out of view. At trial, the CI identified defendant in this video footage, andin the courtroom, as the man he knew as Jaheim. An investigation determined that the car hadbeen rented in defendant's name, using defendant's address.
The CI testified that he and defendant first drove from the parking lot to a liquor store andthen to defendant's residence, where Walters showed the gun to the CI.[FN3] The CI stated that defendant had "a lot ofstatus" within the United Blood Nation and was thus able to direct Walters to handle thetransaction and provide the purchase money to defendant afterward. In this way, "if anythinghappen[ed], [defendant's] hands [wouldn't] be dirty." The CI took photos of the gun—a .40caliber Glock 22—which he sent to the FBI agent later that day. These photos wereentered into evidence at trial.
About 45 minutes after the first call, the FBI agent received another call in which the CIreported that he was at defendant's residence and that the "gun [wa]s legit." The CI was instructedto set up the sale; he called back 30 minutes later and advised the FBI agent that he was withdefendant, who wanted $800 for the gun. The FBI agent offered a lower price and heard a"regular male voice" in the background emphatically rejecting the offer. The original price wasagreed upon, and the transaction was set up for the following afternoon. The next day the CIcalled defendant, in the presence of the FBI agent, just before going to defendant's house tocomplete the transaction. An audio recording of this conversation revealed that a femaleanswered the phone, the CI asked to speak with defendant, and the female called out for "Ja" tocome to the phone.[FN4] Attrial, the CI identified the voice of the man who then came to the phone as defendant's. On therecording, the CI can be heard asking defendant whether he remembered "talking about the 7 2114 yesterday," and defendant answered, "Yeah." The CI testified that this sequence of numberswas a code used for the word gun, representing the positions of the word's letters in the alphabet.The CI then said, "[R]emember I told you I was coming through," and asked, "[Y]ou still ondeck?" Defendant responded with a partially audible phrase, which may have been, "[Y]eah it'sstill here," as the People contend, or "[Y]eah he's still here," as defendant contends.
After the call, the FBI agent searched the CI to ensure that he had no money or contraband.Footage from a body camera worn by the CI and from pole cameras along the way showed theCI's travel to defendant's residence. Upon arrival at the front door, the CI was advised thatJaheim had gone to "Ellis." The CI asked if "homeboy" was there and if the CI could speak withhim. An individual not visible to the camera then came out of the house. The CI said that he wasthere to see Jaheim and asked whether this individual was "up for that." The individualresponded, "Yeah," and added a partially inaudible remark that sounded like "It's aroundback."[FN5] The CI walkedaround to the back of the house, where he encountered several individuals, including Walters.The CI attempted to call defendant's cell phone, but he did not answer. As described in the CI'stestimony and partially revealed in the body camera footage,[FN6] Walters then completed the sale, discharging abullet from the gun's chamber at the CI's request and then exchanging the gun, with twomagazines and additional bullets, for the CI's payment. The CI took the gun, and the footage fromthe body camera and pole cameras showed him returning to the FBI agent's vehicle, where,according to the FBI agent, the gun, magazines and ammunition were retrieved. At trial, the CIidentified these items and photographs taken of them by police. Police tested the gun and foundthat it was operable.
Defendant took the stand on his own behalf, denying that he participated in the gun sale. Heacknowledged that the residence where the transaction took place was his home and that he hadbeen present in the store parking lot when he appeared in the pole camera footage, but he claimedanother reason for his presence at the store. He denied that he discussed anything with the CI,stating that he had instead merely agreed to give the CI a ride to a liquor store. After dropping theCI at the liquor store, he went home to make dinner and help his children with homework; hetestified that the CI was never at his residence on that day. Defendant said that he left hisresidence the next afternoon and drove to a doctor's appointment at Ellis Hospital in the City ofSchenectady, stating his time of arrival and departure. Medical records were submittedconfirming this claim.
On cross-examination, defendant admitted that the aliases that the CI had used for him andWalters were accurate, and acknowledged that the CI had been at his home on an earlieroccasion. He identified his voice and that of his wife on the audio recording of the phone callmade by the CI just before the controlled purchase, and acknowledged that his wife sometimescalled him Ja. He, however, denied that the ensuing conversation had to do with the charged gunsale, appearing to assert, in unclear testimony, that he and the CI were discussing a previous,unrecorded encounter in which the CI had asked defendant where he could get a "burner."Defendant was evasive as to whether he knew what "7 21 14" meant at the time of the phone call,but acknowledged that he did not ask about its meaning when the CI used the term. He assertedthat, when the CI then asked defendant whether he was "still on deck," defendant thought that theCI was asking whether defendant was at home. He said that he responded, "[H]e's still here,"rather than "[I]t's still here," as the People claimed. When asked why he gave that response andwhat person he meant by "he," defendant did not give a clear answer, testifying that the wordcould have referred to several people.
Defendant argues that the CI's credibility is in serious doubt due to his lengthy criminalhistory, the benefits he received for his services, and numerous alleged inconsistencies,contradictions and implausible claims in his testimony. If the jury had agreed with thesecontentions, a different verdict would not have been unreasonable. Thus, we "must, like the trierof fact below, weigh the relative probative force of conflicting testimony and the relative strengthof conflicting inferences that may be drawn from the testimony" (People v Romero, 7 NY3d 633,643 [2006] [internal quotation marks and citations omitted]). The CI was extensivelycross-examined on the issues that defendant now raises, and "the jury had ample opportunity toassess [his] testimony and credibility" (People v Peterkin, 159 AD3d 1196, 1198 [2018] [internal quotationmarks and citations omitted], lv denied 31 NY3d 1151 [2018]). His testimony waspartially corroborated by the audio and video recordings and the FBI agent's testimony, and it"was not incredible as a matter of law such that it should have been totally disregarded as beingwithout evidentiary value" (People vHolliman, 12 AD3d 773, 775 [2004], lv denied 4 NY3d 764 [2005], lvdenied upon reconsideration 4 NY3d 831 [2005]). Thus, whether to credit the CI's assertionthat defendant arranged the transaction but sought to insulate himself from criminalresponsibility by directing Walters to complete the sale was a factual assessment within theprovince of the jury. According deference to this credibility determination, and viewing theevidence in a neutral light, we find that the verdict was not against the weight of the evidence(see Penal Law §§ 10.00 [8]; 20.00, 265.03 [3]; 265.11 [1]; People v Odom, 36 AD3d 1027,1028-1029 [2007]; People v Holliman, 12 AD3d at 774-775; People v Hatch-Green, 20 AD3d581, 582-583 [2005], lv denied 5 NY3d 828 [2005]).
County Court did not err in granting the People's pretrial application to permit evidence ofthe gang affiliations of defendant and the other participants in the gun sale. Although proof of adefendant's bad acts may not be admitted solely to demonstrate his or her propensity to committhe charged crimes, "[e]vidence regarding gang activity can be admitted to provide necessarybackground, or when it is inextricably interwoven with the charged crimes, or to explain therelationships of the individuals involved" (People v Kims, 24 NY3d 422, 438 [2014] [quotation marksomitted]; see People v Davis, 144AD3d 1188, 1189-1190 [2016], lv denied 28 NY3d 1144 [2017]; People v McCommons, 143 AD3d1150, 1154 [2016], lv denied 29 NY3d 999 [2017]). Here, the CI's testimony abouthis former gang membership, the affiliation between his gang and the Bloods and his position oftrust as an enforcer explained the FBI's interest in his services as a CI. His testimony about theowner's gang affiliation provided background information that explained the FBI's surveillance ofthe store and the CI's presence there. As for defendant himself, evidence of his gang membershipand status within the gang hierarchy helped the jury to understand why the CI felt comfortableapproaching him about the gun sale and how defendant was able to arrange the sale whileremoving himself from physical involvement.[FN7] Notably, the testimony specifically addressingdefendant's gang involvement, as opposed to that of the other participants, was limited. We thusfind that the testimony was admissible to provide background information and explain therelationships of the participants in the sale, and that County Court did not abuse its discretion infinding that its probative value outweighed the potential for undue prejudice (see People v Bailey, 32 NY3d 70,83-84 [2018]; People v McCommons, 143 AD3d at 1154; People v Johnson, 106 AD3d1272, 1274 [2013], lv denied 21 NY3d 1043 [2013]; People v Lee, 80 AD3d 877, 880[2011], lv denied 16 NY3d 832 [2011]).
County Court properly declined to grant a mistrial based upon the FBI agent's testimonyregarding narcotics activity "in the back" of defendant's residence. "The decision to grant or denya motion for a mistrial is within the trial court's discretion and its decision will not be disturbedunless it amounts to an abuse of discretion" (People v Conway, 179 AD3d 1218, 1220 [2020] [internal quotationmarks, brackets and citations omitted], lv denied 35 NY3d 941 [2020]). Here, duringcross-examination, Walters' counsel asked the FBI agent a series of questions about a name,"Moe," on a form related to payments to a confidential informant.[FN8] Ultimately, Walters' counsel asked the FBIagent to refresh his recollection by reviewing his notes, which had been marked for identificationas a defense exhibit, and then asked several questions about references to "Moe" in those notes,followed by a sequence of questions about whether "he" was in the back hallway of defendant'shome at the time of the sale. The FBI agent expressed confusion as to whether counsel wasreferring to Moe, the agent's source, or someone else, and Walters' counsel made multipleunsuccessful attempts to clarify. Walters' counsel then withdrew the original question and askedthe FBI agent whether the source had told him where he was during the transaction, which theFBI agent could not recall. Walters' counsel drew his attention specifically to a certain line of hisnotes to refresh his recollection. The FBI agent indicated that his recollection had been refreshed,and Walters' counsel asked, "Your source said that they went into the back hallway, is thatcorrect?" The FBI agent responded, "He believed that they were cutting narcotics in theback."
Both Walters' counsel and defendant's counsel moved for a mistrial, arguing that thereference to narcotics activity in defendant's home violated the Molineux ruling and wasunduly prejudicial. County Court struck the response and denied the motion, noting, among otherthings, that Walters' counsel had elicited the response by drawing the FBI agent's attentionspecifically to a line of text that read, "[C]utting product, went in back hallway." The courtoffered to provide a limiting instruction, but defendant's counsel rejected the offer.
As defendant argues, the reference to narcotics was not directly responsive to the questionasked, which called for a yes or no answer, and which the FBI agent later answered in thenegative. However, it followed a series of questions aptly described by County Court as"confusing, ambiguous and vague," it was elicited when Walters' counsel specifically directed theFBI agent to review the line that referenced narcotics, and it was immediately stricken. Notably,the response did not directly violate the Molineux ruling, as it did not suggest thatdefendant or Walters were involved in cutting narcotics. Any prejudice to defendant resultingfrom the fact that this activity was allegedly taking place in his home was reduced by hisundisputed absence from the premises at the time. Moreover, the response was given in thecontext of a trial record that was replete with other testimony about alleged illegal activity bygang members that was admitted without objection. We thus find that County Court did notabuse its discretion in declining to declare a mistrial (see People v Hamilton, 176 AD3d 1505, 1507 [2019], lvdenied 34 NY3d 1128 [2020]; People v Rimmen, 8 AD3d 1088, 1088 [2004], lv denied 3NY3d 661 [2004]; People v West, 271 AD2d 806, 809 [2000], lv denied 95NY2d 893 [2000]).[FN9]
Finally, defendant argues that County Court undermined the presumption of innocence anddeprived him of his right to a fair trial by giving an interested witnessinstruction—modeled almost exactly upon the text of the pertinent patterninstruction—that permitted the jury to consider whether defendant's interest in theoutcome of the trial affected the truthfulness of his testimony (see CJI2d[NY] Credibilityof Witnesses). As defendant concedes, this argument is unpreserved for our review (see People v Piedra, 87 AD3d 706,707 [2011], lv denied 17 NY3d 955 [2011]; People v Dees, 45 AD3d 602, 603 [2007], lv denied 9NY3d 1032 [2008]), and we decline his request to exercise our interest of justice jurisdiction tomodify the judgment on this ground.
Lynch, Clark, Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Defendant's alias is spelled"Jahiem" in the indictment but is spelled "Jaheim" throughout the remainder of the record.
Footnote 2:The CI testified that he was aformer member of the Latin Kings, but was able to become an enforcer for the Bloods becausethe two gangs were affiliated.
Footnote 3:The CI consistently identifiedWalters by a known alias throughout his testimony.
Footnote 4:The CI identified himself duringthis call as "Uncle Ray" and as "[the owner's] uncle." The CI testified that these were streetnames given to him out of respect for his age and denied that he had any family relationship withthe owner. Defense counsel cross-examined him extensively on this claim and argued insummation that the CI was lying about this relationship, his previous acquaintanceship withdefendant and many other aspects of his testimony.
Footnote 5:It is unclear from the testimonywhether the individual with whom the CI spoke was the person he knew as "homeboy," Waltersor someone else.
Footnote 6:Much of the transaction cannotbe seen but is audible in the recording.
Footnote 7:The People elicited testimonyfrom the CI as to Walter's gang membership, but it was stricken because of the form of thequestion. It does not appear that such information was admitted elsewhere at trial.
Footnote 8:The testimony was unclear as towhether this informant was the CI.
Footnote 9:Defendant's appellate argumentthat County Court gave inadequate curative instructions is unpreserved, as he refused the court'soffer for such an instruction (see Peoplev Adams, 8 AD3d 685, 686-687 [2004], lv denied 3 NY3d 669 [2004]). To theextent that defendant argues that a mistrial should have been granted based on other trialtestimony that allegedly suggested that defendant had a criminal history, defendant neither raisedthis argument as part of his mistrial motion nor argued on appeal that he was denied a fair trial bythe cumulative effect of multiple errors. Moreover, when County Court struck the testimony inquestion from the record, defendant described the remedy as "fair" and rejected the court's offerfor a curative instruction.