| People v Shelton |
| 2012 NY Slip Op 06153 [98 AD3d 988] |
| September 12, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Bushawn Shelton, Appellant. |
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Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Jennifer Hagan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.),rendered February 27, 2009, convicting him of assault in the first degree and burglary in thesecond degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, andthe matter is remitted to the Supreme Court, Queens County, for a new trial.
On appeal, the defendant contends, inter alia, that the trial court erred in failing to instruct thejury with an accomplice-corroboration charge. We agree. Although the defendant did notpreserve this claim for appellate review by requesting such a charge, or objecting to the jurycharge as given (see CPL 470.05 [2]; People v Lipton, 54 NY2d 340, 351 [1981];People v Kennedy, 78 AD3d1233, 1236 [2010]), under the circumstances of this case, we reach the issue as a matter ofdiscretion in the interest of justice. Reversal is also warranted because the trial court permittedthe prosecutor to cross-examine the defendant's alibi witness, without first having laid the properfoundation about her failure to come forward with exculpatory information at an earlier date(see People v Dawson, 50 NY2d 311 [1980]). Although this contention is alsounpreserved for appellate review, under the circumstances of this case, we review it as a matterof discretion in the interest of justice. These errors were not harmless, as the proof of thedefendant's guilt was not overwhelming (see People v Figueroa, 181 AD2d 690 [1992];cf. People v Jara, 212 AD2d 636 [1995]).
The defendant was convicted of assault in the first degree and burglary in the second degreefollowing a jury trial. The charges in this case arose out of a single incident, in which thedefendant, along with three others, allegedly assaulted the victim after unlawfully entering hisQueens apartment. At trial, the only witness to identify the defendant as one of the individualsinvolved was a witness who had spent part of the afternoon before the incident in the Bronx withthe four alleged assailants. Notably, the victim himself also testified on behalf of the People, butstated that he did not know the defendant and could not identify him as one of the men whocommitted the crimes.[*2]
The witness testified at trial that she was an acquaintanceof the defendant, and had accompanied the four alleged assailants to the victim's apartment thatevening. She stated that the five of them drove in two vehicles to the victim's residence so shecould facilitate a marijuana purchase. She was aware that one of the alleged assailants other thanthe defendant was carrying a gun. After parking around the corner from the victim's apartmentbuilding, the group of five entered the building and approached the apartment, and the witnessrang the doorbell. The victim's girlfriend responded to the doorbell. Upon learning from thevictim's girlfriend that the victim was asleep, the group of five departed and walked back to theirtwo cars. At that point, one of the members of the group remarked in a frustrated and aggressivetone that he "didn't come from the Bronx for nothing."
The group of five briefly walked to a gas station and, shortly thereafter, returned to thevictim's apartment. According to the witness, she was told that they wanted to return so that oneof the members of the group could leave his telephone number with the victim's girlfriend. Thewitness stated that, upon returning to the victim's apartment, she approached the front door, withher four companions positioned on the side of the door in a manner whereby they could not beseen by the person answering the door. The victim's girlfriend opened the door, and agreed totake the telephone number. As the girlfriend was closing the door, one of the witness's fourcompanions other than the defendant prevented the door from being closed, and gestured for thewitness to walk away, which she did. The four alleged assailants rushed in. The witnessexplained that, as she was walking down the block and was approximately four houses awayfrom the victim's apartment building, she heard gunshots, and believed that her four companionswere still in the apartment. She saw two of the companions run out of the apartment, andbelieved that the defendant was still inside. The witness called a friend to pick her up, returnedhome, and was thereafter taken into custody by the police.
As for the defendant's first claim on appeal, "[a] defendant may not be convicted of anyoffense upon the testimony of an accomplice unsupported by corroborative evidence tending toconnect the defendant with the commission of such offense" (CPL 60.22 [1]; see People v Montefusco, 44 AD3d879, 880 [2007]). A witness in a criminal action is an accomplice if he or she "mayreasonably be considered to have participated in either the offense charged or an offense basedupon the same or some of the same facts or conduct which constitute the offense charged" (People v Caban, 5 NY3d 143, 154[2005] [internal quotation marks omitted]; see CPL 60.22 [2] [a], [b]). Further, a witnesswho is a criminal facilitator is an accomplice for corroboration purposes (see People vBasch, 36 NY2d 154, 158 [1975]; People v Lumnah, 81 AD3d 1175, 1176 [2011]). The factual issueof whether a particular witness is an accomplice should be submitted to the jury if differentinferences may reasonably be drawn from the proof regarding complicity (see People vBasch, 36 NY2d at 157; People vCorrea, 88 AD3d 810, 811 [2011]).
Here, the witness's testimony was unsupported by corroborative evidence tending to connectthe defendant with the commission of the charged offenses. Further, contrary to the People'scontention, an inference could have reasonably been drawn from the evidence that the witnesseither participated in or facilitated the offenses charged. Specifically, she testified that she wasaware that one of the members of the group had been carrying a gun, and that, upon being turnedaway from the victim's apartment on the first occasion, one of the members remarked in afrustrated and aggressive tone that he "didn't come from the Bronx for nothing." Then, uponreturning to the victim's apartment a second time, when she went to ring the doorbell, her fourmale companions were positioned to the side of the door and could not be seen by the personanswering the door. This evidence was susceptible of more than one interpretation, and theSupreme Court erred in failing to instruct the jury to determine whether the witness was anaccomplice (see People vCirigliano, 15 AD3d 672, 673 [2005]; People v Catter, 237 AD2d 526, 527[1997]).
As for the defendant's second claim on appeal, as part of his case, the defendant presented thetestimony of an alibi witness. She testified that she was unemployed but worked as a communityorganizer, that she had previously started a foundation that advocated for families of victims ofviolence, and had contacts at the District Attorney's office. She further testified, in pertinent part,that on the night in question, she had driven to the victim's neighborhood to pick her [*3]brother up from work. She first encountered the defendant when shestopped her car to ask him about his vehicle's sound system. That evening was the first time shehad ever met the defendant. She exited her car, they walked and spoke briefly, and the defendantgave her his brother's telephone number in case she wished to inquire about sound systemsfurther. They went separate ways and, less than one minute after leaving the defendant'scompany, she heard shots fired and saw the defendant running. Her testimony was, in effect, thatthe defendant could not have been involved in the offense because he was with her up untilnearly the moment before the shots were heard.
On cross-examination, the prosecutor questioned the alibi witness about her failure to comeforward with exculpatory information to the police or the District Attorney's office in light of herinvolvement as a community organizer. The prosecutor also made certain comments duringsummation, in effect, emphasizing that she was not believable due to her failure to communicatethis information to law enforcement.
"[T]here is nothing inherently improper about cross-examining a defense witness concerninghis [or her] failure to come forward [with exculpatory information] at an earlier date" (Peoplev Dawson, 50 NY2d at 321), as long as a proper foundation for this type ofcross-examination has been laid by showing that the witness "(i) was aware of the nature of thecharge pending against the defendant; (ii) had reason to recognize that he or she possessedexculpatory information; (iii) had a reasonable motive for acting to exonerate the defendant; and(iv) was familiar with the means of making such information available to law enforcementauthorities" (People v Miller, 89 NY2d 1077, 1079 [1997]; see People v Dawson,50 NY2d at 321 n 4; People v Stokes, 282 AD2d 553 [2001]).
Here, the trial court erred in allowing the prosecutor to impeach the alibi witness's credibilityby virtue of her prior silence as to certain exculpatory information concerning the defendant,without having first laid this proper foundation (see People v Dawson, 50 NY2d 311[1980]; People v Jara, 212 AD2d 636 [1995]; cf. People v Wright, 62 AD3d 916, 918 [2009]). Although theprosecutor arguably laid a proper foundation that the alibi witness was familiar with the means tomake such information available to law enforcement authorities due to her community activismand contacts at the District Attorney's office, the prosecution failed to establish that she had beenaware of any charges pending against the defendant, or that she had reason to recognize that shepossessed exculpatory information, since she testified, in effect, that she did not believe thedefendant was involved in any matter involving the gunshots that she heard. Furthermore, theprosecution failed to establish that she had a reasonable motive for acting to exonerate thedefendant, as she testified that she had first met him that evening (see People v Morris,100 AD2d 600 [1984]). Additionally, the prosecutor's summation went beyond the bounds of fairadvocacy in frequently characterizing the alibi witness, in effect, as having a flawed moralcharacter, and being generally unworthy of belief (see People v Dawson, 50 NY2d at317-318; see also People v Figueroa, 181 AD2d at 692).
The defendant's remaining contention has been rendered academic in light of ourdetermination. Accordingly, the judgment must be reversed, and the matter remitted to theSupreme Court, Queens County, for a new trial. Skelos, J.P., Florio, Belen and Sgroi, JJ., concur.