| People v Rankin |
| 2014 NY Slip Op 03550 [117 AD3d 1231] |
| May 15, 2014 |
| Appellate Division, Third Department |
[*1] (May 15, 2014)
| The People of the State of New York, Respondent, vJarrin Rankin, Also Known as Phat Boy, Appellant. |
George P. Ferro, Albany, for appellant, and appellant pro se.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Rose, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered July 26, 2011, upon a verdict convicting defendant of the crime ofconspiracy in the second degree.
While defendant was in jail facing criminal possession of a weapon charges inconnection with a shooting, his brother and fellow gang member, Trevor Mattis, shot andkilled the principal witness against defendant.[FN*]
Defendant was then charged with conspiracy in the second degree for orchestratingthe murder. A jury convicted him and he was sentenced as a prior violent felony offenderto a prison term of 12
Defendant's general motion to dismiss at the close of the People's direct case wasinsufficient to preserve his claim that the evidence was legally insufficient to support theverdict (see People vHawkins, 11 NY3d 484, 493 [2008]; People v Harvey, 96 AD3d 1098, 1100 n [2012], lvdenied 20 NY3d 933 [2012]). Nevertheless, we will evaluate the evidence in light ofthe elements of the crime as part of our weight of the evidence review (see People v Danielson, 9NY3d 342, 349 [2007]; People v Newkirk, 75 AD3d 853, 855 [2010], lvdenied 16 NY3d 834 [2011]). In conducting a weight of the evidence review where,as here, a different verdict would not have been unreasonable, "we 'must, like the trier offact below, weigh the relative probative force of conflicting testimony and the relativestrength of conflicting inferences that may be drawn from the testimony' " (People v McCoy, 89 AD3d1218, 1221 [2011], lv denied 18 NY3d 960 [2012], quoting People v Romero, 7 NY3d633, 643 [2006]).
In order to support the conviction of conspiracy in the second degree, the Peoplewere required to prove that defendant, acting with intent that conduct constituting a classA felony (here, murder) be performed, agreed with one or more persons to engage in orcause the performance of such conduct, and that one of the coconspirators committed anovert act in furtherance of the conspiracy (see Penal Law§§ 105.15, 105.20; People v Washington, 8 NY3d 565, 570 [2007]; People v Caban, 5 NY3d143, 149 [2005]). The evidence at trial established that, while in jail, defendant wasindicted in connection with a shooting and learned that the victim had appeared beforethe grand jury as a witness against him. Two coconspirators testified for the People thatdefendant and the other coconspirators were all members of the same faction of theBloods gang. Recorded phone calls between defendant and his coconspirators revealeddefendant's repeated instructions to the coconspirators to locate the victim in order toprevent him from testifying at trial. While defendant and his coconspirators were awarethat the phone calls from jail were recorded and at times spoke in code, an expert in localgangs testified that the language they used indicated that they planned to assault or killthe victim. Subsequent developments clarified their intention.
One of the coconspirators confronted the victim's father by brandishing a box cutterand threatening to "go through" the victim's entire family in an effort to find him. Whenthe coconspirators learned that the victim had been located, they swiftly assembled anddrove to his location, where Mattis was given a gun by a coconspirator. The othercoconspirators then waited in the car while Mattis engaged the victim in conversation,shot him twice, including a fatal shot to the back of his head, and then returned to the car.They all then fled the scene. When defendant heard of the shooting later that same dayduring phone calls, he warned one of the coconspirators to "see no evil, hear no evil" and"don't even talk" if questioned. In our view, the reasonable inferences to be drawn fromthis evidence provide ample support for the jury's conclusion that defendant conspired tomurder the victim in order to prevent him from testifying and thus was guilty ofconspiracy in the second degree (see People v McCoy, 89 AD3d at 1221-1222;People v Booker, 53 AD3d697, 703-704 [2008], lv denied 11 NY3d 853 [2008]).
We also find no abuse of discretion in County Court's determination that theprobative value of the evidence concerning defendant's gang affiliation and the history,organization and operations of the gang outweighed its prejudice, inasmuch as itprovided necessary context and background to explain the relationships of thecoconspirators, their use of code and their motive and intent (see People v Johnson, 106AD3d 1272, 1274 [2013], lv denied 21 NY3d 1043 [2013]; People v Tatro, 53 AD3d781, 784-785 [2008], lv denied 11 NY3d 835 [2008]; People v Williams, 28 AD3d1005, 1008 [2006], lv denied 7 NY3d 819 [2006]). Moreover, County Courtprovided appropriate limiting instructions each time the evidence was introduced, untildefendant requested that no further instructions be given on the subject (see People v Reid, 97 AD3d1037, 1038 [2012], lv denied 19 NY3d 1104 [2012]; People v Collazo, 45 AD3d899, [*2]901 [2007], lv denied 9 NY3d 1032[2008]; People v Faccio, 33AD3d 1041, 1042 [2006], lv denied 8 NY3d 845 [2007]).
Defendant's pro se contention that County Court erred in instructing the jury that theconspiracy charge required evidence that defendant conspired to commit murder in thesecond degree, as opposed to murder in the first degree as charged in the indictment, isnot preserved for our review, inasmuch as defendant did not object to the charge as given(see CPL 470.05 [2]; People v Houck, 101 AD3d 1239, 1240 [2012]; Peoplev Williams, 28 AD3d at 1009; People v Udzinski, 146 AD2d 245, 252[1989], lv denied 74 NY2d 853 [1989]). In any event, any error was harmless asthe charge did not change the theory of the prosecution and defendant's pro sesubmissions do not identify any surprise or resulting prejudice (see People vGrega, 72 NY2d 489, 497 [1988]; People v McChesney, 160 AD2d 1045,1046 [1990]; People v Zimmer, 88 AD2d 1031, 1031 [1982]).
Finally, although defendant's parents were both deceased by the time he was 13 yearsof age and he was only 18 when he orchestrated the execution of the victim, he has aviolent criminal history and, given the heinous nature of this crime, we discern no abuseof discretion or extraordinary circumstances warranting a reduction of the sentence(see People v Tatro, 53 AD3d at 787; People v Williams, 28 AD3d at1011). Defendant's remaining contentions have been considered and determined to bewithout merit.
Peters, P.J., Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Mattis was convicted of,among other things, murder in the first degree and conspiracy in the second degree andthis Court affirmed his conviction (People v Mattis, 108 AD3d 872, 876 [2013], lvdenied 22 NY3d 957 [2013]).