| People v Hall |
| 2011 NY Slip Op 05936 [86 AD3d 450] |
| July 14, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Alexander Hall, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod of counsel), forrespondent.
Judgment, Supreme Court, New York County (Lewis Bart Stone, J., at suppression motion;Ruth Pickholz, J., at jury trial and sentence), rendered November 8, 2007, convicting defendantof manslaughter in the second degree, assault in the third degree (two counts) and criminalpossession of a weapon in the second degree, and sentencing him to concurrent terms of 5 to 15years on the manslaughter count, one year on the assault counts and 15 years on the weaponcount, unanimously affirmed.
At about 3:30 a.m. on the morning of October 12, 2005, defendant and three of his friends,after spending the night drinking at a club, were involved in an altercation with a club promoter,which ended with the arrival of police. As they walked to their cars, one of defendant's friendswas hit on the head with a broken bottle, sustaining a cut. Records of cell tower transmissionsdisclosed that defendant and one companion first drove south toward his apartment but, at 4:02a.m., headed back north toward the club. At 4:08 a.m., calls placed from both men's phones wererelayed from a cell tower located to the north of the club. Defendant's call was received by one ofhis friends riding in the other car, who related that defendant had stated that he was on his wayback to the club.
At about 4:10 a.m., defendant opened fire on a group of club patrons who had just left theclub and remained in front of the establishment after its 4:00 a.m. closing time. One bullet struckTabitha Perez, the mother of a seven-year-old boy, piercing her lung and causing her death.Another round struck Ruben Batista, a homeless man, in the leg, shattering a bone. A thirdvictim, Jeremy Soto, was injured by a bullet that passed through his calf and another that grazedhis finger. The parties stipulated that a call was made to 911 at 4:11 a.m., and cell phone recordsrevealed that a call made from defendant's phone at 4:13 a.m. was handled by a cell tower at179th Street, just north of the club, located between 176th and 177th Streets. Defendant wasidentified as the shooter at a lineup by a witness who had described him as young, with dark hairand a light complexion, dark eyes and distinctive, arched eyebrows.
Some nine months later, as the result of an unrelated narcotics investigation, police arresteddefendant's traveling companion on the night of the shootings, recovering a .357 magnumrevolver. While the condition of the bullets that struck the victims did not permit them to bematched to the gun, a ballistics expert testified that the weapon was capable of firing those [*2]rounds.
Defendant was indicted for murder in the second degree for causing the death of TabithaPerez, assault in the first degree for causing serious physical injury to Jeremy Soto, assault in thefirst degree for causing serious physical injury to Ruben Batista, and criminal possession of aweapon in the second degree for possessing a loaded pistol with intent to use it unlawfullyagainst another, all on or about October 12, 2005. The murder and assault counts alleged thatdefendant had acted with depraved indifference to human life.
The jury acquitted defendant of murder in the second degree but found him guilty ofmanslaughter in the second degree. Similarly, the jury acquitted defendant of both counts ofassault in the first degree but found him guilty of assault in the third degree. The jury founddefendant guilty of criminal possession of a weapon in the second degree.
The court properly denied defendant's motion to suppress historical cell site locationinformation (CSLI) for calls made over his cell phone during the three-day period surroundingthe shootings. These records were obtained by court order under 18 USC § 2703 (d), whichdoes not require that the People establish probable cause or obtain a warrant. Even if a cell phonecould be considered a "tracking device" under 18 USC § 3117 (b) to the extent that itpermits the tracking of movement, the People are not thereby precluded from obtaining CSLIrecords pursuant to section 2703 (see In re Application of US for Order Directing Provider ofElec. Communication Serv. to Disclose Records to Govt., 620 F3d 304, 308-310 [3d Cir2010]; In re Applications of US for Orders Pursuant to Title 18, US Code Section 2703[d], 509 F Supp 2d 76, 79-80, 80 n 8 [D Mass 2007]).
Obtaining defendant's CSLI without a warrant did not violate the Fourth Amendmentbecause, under the Federal Constitution, defendant had no reasonable expectation of privacywhile traveling in public (see e.g. United States v Knotts, 460 US 276, 281 [1983]; Inre Application, 620 F3d at 312). Defendant's argument for suppression under the New YorkState Constitution (see People vWeaver, 12 NY3d 433, 445 [2009]) is unpreserved (see e.g. People v Garcia,284 AD2d 106, 108 [2001], lv denied 97 NY2d 641 [2001]), and we decline to review itin the interest of justice. As an alternative holding, we reject it on the merits. AlthoughWeaver requires the police to obtain a warrant supported by probable cause for theinstallation of a global positioning system device, it does not address the matter of CSLI records.Additionally, in Weaver the device was used to track the defendant's movements for 65days, as opposed to a mere three days in the instant case. To the extent that prolongedsurveillance might require a warrant under federal law (see United States v Maynard, 615F3d 544 [DC Cir 2010], cert denied 562 US —, 131 S Ct 671 [2010]), we find thatthree days of CSLI records does not constitute a protracted surveillance.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). On thecontrary, the evidence of defendant's guilt was overwhelming. There is no basis for disturbing thejury's determinations concerning credibility and identification. The People's case included aneyewitness's identification, defendant's confession to two civilians, his partly incriminatingstatements to police, and compelling circumstantial evidence.
Since there was extensive evidence connecting defendant to the crime besides theidentification, the trial court properly exercised its discretion in denying defendant's request tocall an expert on eyewitness identification (see People v Abney, 13 NY3d 251, 269 [2009]). The [*3]trial court properly exercised its discretion in admittingcomputer-generated evidence and denying defendant's request to permit the jury to visit the crimescene. Defendant's challenge to the court's charge is unpreserved, and we decline to review it inthe interest of justice. As an alternative holding, we reject it on the merits. In any event, any errorin regard to the court's discretionary determinations and its jury charge was harmless in light ofthe overwhelming evidence of guilt (see People v Crimmins, 36 NY2d 230 [1975]).
We find the sentence not excessive under the circumstances of this case.Concur—Gonzalez, P.J., Tom, Andrias, Moskowitz and Freedman, JJ.