| People v Matos |
| 2015 NY Slip Op 08761 [133 AD3d 885] |
| November 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Matos, Appellant. (Appeal No. 1.) The People of theState of New York, Respondent, v Jason Matos, Appellant. (Appeal No. 2.) The Peopleof the State of New York, Respondent, v Lee Taylor, Appellant. (Appeal No.3.) |
Edelstein & Grossman, New York, N.Y. (Jonathan I. Edelstein and Robert M.Grossman of counsel), for appellants.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), forrespondent.
Appeals (1) by the defendant Anthony Matos from a judgment of the Supreme Court,Queens County (Aloise, J.), rendered August 3, 2011, convicting him of manslaughter inthe first degree, gang assault in the first degree, and criminal possession of a weapon inthe fourth degree, upon a jury verdict, and imposing sentence; (2) by the defendant JasonMatos from a judgment of the same court, rendered August 3, 2011, convicting him ofgang assault in the second degree, upon a jury verdict, and imposing sentence; and (3) bythe defendant Lee Taylor from a judgment of the same court, rendered August 3, 2011,convicting him of gang assault in the second degree, upon a jury verdict, and imposingsentence. The appeal by the defendant Anthony Matos brings up for review the denial,after a hearing, of his motion to suppress his statements to law enforcement officials.
Ordered that the judgments are affirmed.
In the early morning hours of June 20, 2007, the defendants Anthony Matos(hereinafter Anthony), Jason Matos (hereinafter Jason), and Lee Taylor (hereinafterTaylor) (hereinafter collectively Anthony's group), along with about a dozen otherfriends, were at Riviera Club (hereinafter the club), in Astoria, Queens. A second group,including Jason Brown (hereinafter Brown) and five or six others (hereinaftercollectively Brown's group), was seated nearby. [*2]Ultimately, a fight broke out between members ofAnthony's group and Brown's group. The club's security personnel broke up the fight,and escorted Brown's group out through a side door while Anthony's group was brieflydetained. Anthony's group was permitted to leave through the front entrance a fewminutes later, but Brown and his group had come around to the front of the club and,when Anthony's group exited the club, the fight recommenced. Security again attemptedto stop the fight, but the situation quickly degenerated into what one security employeedescribed as a "mêlée." During this fight, Brown was stabbed, stomped on,and left in the street. Brown later died as a result of his injuries.
Anthony, Jason, and Taylor, among others, were subsequently indicted on, inter alia,charges of manslaughter in the first degree (Anthony and Jason), gang assault in the firstdegree (Anthony, Jason, and Taylor), and criminal possession of a weapon in the fourthdegree (Anthony and Jason). After a combined Wade/Huntley hearing(see United States v Wade, 388 US 218 [1967]; People v Huntley, 15NY2d 72 [1965]), the Supreme Court determined, inter alia, that certain statements madeby Anthony while he was in custody outside of the presence of his attorney were not theproduct of police interrogation and, therefore, were not subject to suppression.
Anthony, Jason, and Taylor were tried together. At trial, Gilbert Martinez(hereinafter Martinez), another member of Anthony's group, testified that on the night ofthe incident, the last person he saw near Brown was Anthony, who was crouched overBrown. Later that same night, Anthony admitted to him that "he stabbed [Brown] twice."The jury also viewed substantial portions of the club's security video, which depictedboth the interior and exterior of the premises. The jury returned a verdict convictingAnthony of manslaughter in the first degree, gang assault first degree, and criminalpossession of a weapon fourth degree. Jason and Taylor were both convicted of gangassault in the second degree.
Contrary to the defendants' contention, the evidence adduced at trial, viewed in thelight most favorable to the People (see People v Contes, 60 NY2d 620, 621[1983]), was legally sufficient to support the convictions. The testimony given byMartinez, particularly in combination with evidence from the club's security videos andthe testimony of other witnesses, was adequate to establish the involvement of each ofthe defendants in the fight which led to Brown's death, and that they acted in concertwith one another so as to support the gang assault charges against each of the defendants.The trial evidence was also legally sufficient to support Anthony's convictions ofmanslaughter in the first degree and criminal possession of a weapon in the fourth degree(see People v Abraham, 22NY3d 140, 146 [2013]; People v Cintron, 95 NY2d 329, 332 [2000];People v Taylor, 94 NY2d 910, 911 [2000]). "The mere fact that the evidence issubject to an interpretation different from that found by the jury does not mean thePeople failed to prove their case beyond a reasonable doubt" (People vTaxiarhopoulos, 172 AD2d 783, 784 [1991]).
Additionally, and contrary to the opinion of our dissenting colleague, we are satisfiedthat the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]; People vSaunders, 127 AD3d 1111, 1112 [2015]). "Upon [a] defendant's request, theAppellate Division must conduct a weight of the evidence review," and thus, "adefendant will be given one appellate review of adverse factual findings" (People v Danielson, 9 NY3d342, 348 [2007]; see Peoplev Curry, 112 AD3d 843, 844 [2013]; see also Arthur Karger, Powers ofthe New York Court of Appeals § 21:1 at 744 [3d ed rev 2005]). If afinding in favor of the defendant would not have been unreasonable, then this Court"must weigh conflicting testimony, review any rational inferences that may be drawnfrom the evidence and evaluate the strength of such conclusions" (People vDanielson, 9 NY3d at 348). "Once this Court conducts such an analysis, it must thendecide whether the verdict finding the defendant guilty beyond a reasonable doubt waswarranted" (People v Curry, 112 AD3d at 844). "Essentially," this Court "sits as athirteenth juror and decides which facts were proven at trial" (People vDanielson, 9 NY3d at 348, citing Tibbs v Florida, 457 US 31, 42 [1982]). Ifit appears that the factfinder failed to give the evidence the weight it should have beenaccorded, then this Court may set aside the verdict and dismiss the accusatory instrumentor any reversed count thereof (see CPL 470.20 [5]; People v Romero, 7NY3d at 643-644; People v Mateo, 2 NY3d 383, 410 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]).
[*3] Here, Martinez's testimony was critical to the jury's conclusion that Anthony wasculpable in Brown's death. The dissent contends that the cooperation agreement betweenMartinez and the prosecution "provided Martinez with a strong incentive to fabricate histestimony," and that the inconsistencies between Martinez's out-of-court statements andhis trial testimony compel the conclusion that Martinez was not credible. However, thefact of the cooperation agreement was disclosed to the jury, and merely because a witnessenters into such an agreement does not render his or her testimony incredible (seePeople v Dennis, 223 AD2d 599 [1996]). Furthermore, "when [a] jury, acting withinits rightful province of determining credibility, weighing evidence and drawingjustifiable inferences from proven facts, has an objective, rational basis for resolvingbeyond a reasonable doubt the contradictory inculpating and exculpating versions of theevents given by the witness, its determination of guilt is [not] based on 'impermissiblespeculation' and should be upheld" (People v Fratello, 92 NY2d 565, 573-574[1998], quoting People v Jackson, 65 NY2d 265, 272 [1985]). Here, there was anobjective rational basis for the jury's conclusion. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (seeCPL 470.15 [5]), we nevertheless accord great deference to the jury's opportunity toview the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d at 410).
In this regard, we note that the video evidence captured from security cameras whichwas presented to the jury is of poor quality. However, the jury had the benefit of seeingthis evidence in the context of contemporaneous testimony from the individuals whowere portrayed in the videos. Accordingly, the verdict was not against the weight of theevidence (see generally People v Romero, 7 NY3d at 643-644; People v Cahill, 2 NY3d14, 58 [2003]).
The defendants also argue that the Supreme Court erred in its instructions regardingthe phrase "acting in concert." Although the initial instructions to the jury on this issuemay have been misleading, in response to the defendants' objections, the court providedthe clarification they had requested, and thus, effectively ameliorated any error. Contraryto the defendants' contention, the court's subsequent response to a note from the juryseeking clarification did not change the corrected instruction or otherwise constructivelyamend the indictment (see generally People v Sanchez, 84 NY2d 440, 445-446[1994]; People v Hong Wu,81 AD3d 849, 849-850 [2011]). The remainder of the defendants' objection in thisregard is unpreserved for appellate review and does not warrant the invocation of thisCourt's interest of justice jurisdiction (see CPL 470.15 [6] [a]; People vLopez, 200 AD2d 767, 768 [1994]).
Contrary to the defendants' contention, the Supreme Court did not improperly permitthe prosecutor to question Martinez about prior consistent statements. Duringcross-examination, Anthony's attorney questioned Martinez extensively about theinconsistencies between his statements to the police and his grand jury and trialtestimony, and the other defendants' trial attorneys did not object. Since Anthony'sattorney opened the door, the prosecutor was entitled to further explore Martinez'sstatements during her redirect examination (see People v Melendez, 51 AD3d 1040, 1040-1041 [2008];People v Van Ness, 43AD3d 553, 555 [2007]; People v Williams, 43 AD3d 414 [2007]; see alsoPeople v Melendez, 55 NY2d 445, 451-452 [1982]).
Nor was it error for the prosecutor to make reference in her summation to thedefendants' familial relationships with one another and with others in their group. Suchreferences constituted fair comment upon the evidence or a fair response to the defensesummation (see People v Ashwal, 39 NY2d 105, 109 [1976]; People v White, 5 AD3d511, 511 [2004]).
The Supreme Court also correctly denied suppression of statements which Anthonymade to the police outside the presence of his attorney. A defendant who is representedby counsel may not be questioned outside the presence of counsel (see People vBurdo, 91 NY2d 146, 149-150 [1997]; People v Rogers, 48 NY2d 167, 169[1979]). Here, however, the detective's statements that he believed another suspect mightbe in Anthony's home, and that the investigation could be closed if that suspect wereapprehended, were not " 'reasonably likely to elicit an incriminatingresponse' " (People v Dunn, 195 AD2d 240, 244 [1994] affd 85NY2d 956 [1995], quoting Rhode Island v Innis, 446 US 291, 301 [1980]).Therefore, such statements were not "the functional equivalent of custodialinterrogation," and Anthony's responses thereto were not subject to suppression (People v Davis, 32 AD3d445, 446 [2006]; [*4]see People v Higgins, 124 AD3d 929, 932 [2015];cf. People v Lubrano, 117AD3d 1239, 1240 n 2 [2014]; People v Ziegler, 78 AD3d 545, 546 [2010]).
The sentences imposed were not excessive (see Penal Law§§ 70.02 [3] [a]; 125.20; see e.g. People v Melendez, 71 AD3d 1166, 1167 [2010];People v Gratton, 51 AD3d1219, 1221 [2008]).
The defendants' remaining contention is unpreserved for appellate review (see People v Marcus, 112AD3d 652, 653 [2013]; People v Rogers, 92 AD3d 903, 904 [2012]; People v Montalvo, 34 AD3d600, 601 [2006]) and does not warrant the invocation of this Court's interest ofjustice jurisdiction (see CPL 470.15 [6] [a]; People v Pagan, 2 AD3d 879 [2003]). Balkin, J.P., Austinand Sgroi, JJ., concur.
Hall, J., concurs in part, and dissents in part, and votes to modify the judgment as tothe defendant Anthony Matos, on the law and the facts, by vacating the convictions ofmanslaughter in the first degree and criminal possession of a weapon in the fourthdegree, vacating the sentences imposed thereon, and dismissing those counts of theindictment, and by reducing the conviction of gang assault in the first degree to gangassault in the second degree, vacating the sentence imposed under count two of theindictment, and remitting the matter to the Supreme Court, Queens County, forsentencing on the conviction of gang assault in the second degree, with the followingmemorandum: I agree with much of the determination made by the majority, except forthe determination that convictions of the defendant Anthony Matos (hereinafterAnthony) of manslaughter in the first degree, gang assault in the first degree, andcriminal possession of a weapon in the fourth degree were supported by the weight of theevidence. Accordingly, I respectfully dissent, in part.
"Upon defendant's request, the Appellate Division must conduct a weight of theevidence review," and thus, "a defendant will be given one appellate review of adversefactual findings" (People vDanielson, 9 NY3d 342, 348 [2007]; see CPL 470.15 [5]). If a finding infavor of the defendant would not have been unreasonable, then "the court must weighconflicting testimony, review any rational inferences that may be drawn from theevidence and evaluate the strength of such conclusions" (People v Danielson, 9NY3d at 348). Once the Court conducts such an analysis, it must then decide whether theverdict finding the defendant guilty beyond a reasonable doubt was warranted. If itappears that the factfinder " 'failed to give the evidence the weight it should beaccorded, then the appellate court may set aside the verdict' " (People vMateo, 2 NY3d 383, 410 [2004], quoting People v Bleakley, 69 NY2d 490,495 [1987]).
I recognize that, in fulfilling this Court's responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]), this Court willnevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d at 410).However, upon my review of the record, I find that Anthony's convictions ofmanslaughter in the first degree, gang assault in the first degree, and criminal possessionof a weapon in the fourth degree are against the weight of the evidence.
An acquittal on the charges of manslaughter in the first degree, gang assault in thefirst degree, and criminal possession of a weapon in the fourth degree against Anthonywould not have been unreasonable based on the evidence presented. Moreover, in myview, the jury failed to accord the evidence the weight it should have been accorded (see People v Romero, 7 NY3d633 [2006]). While the evidence presented at trial demonstrated that Anthony wasinvolved in the fight, the only evidence connecting Anthony to the stabbing of JasonBrown was the testimony of Gilbert Martinez. However, I find that Martinez's testimonyin this regard is not credible.
Martinez, who was originally charged with manslaughter and gang assault for hisrole in Brown's death, entered into a cooperation agreement with the prosecution and, inexchange for his testimony, received a probationary sentence after pleading guilty tocriminal facilitation in the [*5]fourth degree, a class Amisdemeanor (see Penal Law § 115.00). This cooperationagreement provided Martinez with a strong incentive to fabricate his testimony and placethe blame for Brown's stabbing on one of his cohorts. While this motive to fabricate doesnot, standing alone, render Martinez unworthy of belief, other factors in combinationwith this motive lead me to the conclusion that Martinez's testimony is not credible.
On cross-examination, Martinez stated that he was not carrying a knife on the nightin question. However, at the police precinct, Martinez initialed a Question and AnswerSheet indicating that he was carrying a Swiss army knife in his front pants pocket, andthat he usually carries a knife for protection. Further, although Martinez testified at trialthat he saw Anthony crouched over Brown's body, he never mentioned this to the policeor prosecutors at any time from 2007 to 2009. Moreover, in contrast to his trialtestimony, Martinez did not tell the grand jury that Anthony admitted to stabbing Brown.Martinez told the grand jury that he did not see the fight break out in the club or whostarted it, and did not know "which guy[ ] got stabbed," despite so testifying at trial. Inaddition, while Martinez testified at trial that Anthony exited the club and threw a punchat Brown, he did not so testify before the grand jury.
Furthermore, the video evidence captured from security cameras, which is of poorquality, does not support a finding that Anthony stabbed Brown. Indeed, even viewingthe videos in connection with the testimony adduced by the People at trial, it is difficultto discern the events depicted because the videos are of such poor quality. Neither thevideos, nor the testimony of the People's witnesses pertaining to the videos, show thatAnthony stabbed Brown.
Consequently, the only evidence connecting Anthony to Brown's stabbing wasMartinez's testimony that after the subject incident, Anthony admitted to him that hestabbed Brown twice. Similarly, the only evidence that Anthony possessed a weaponcame from Martinez's testimony. There is no forensic or other evidence in this record tocorroborate Martinez's testimony that Anthony admitted that he stabbed Brown. Underthese circumstances, Martinez's testimony does not credibly support Anthony'sconvictions of manslaughter in the first degree and criminal possession of a weapon inthe fourth degree (see People vNisthalal, 87 AD3d 702, 705 [2011]; People v Gonzalez, 84 AD3d 1400 [2011]; People v Zephyrin, 52 AD3d543 [2008]). Accordingly, it is my opinion that Anthony's convictions ofmanslaughter in the first degree and criminal possession of a weapon in the fourth degreeare against the weight of the evidence (see People v Nisthalal, 87 AD3d at705).
In light of my finding that Martinez's testimony was incredible, I find that the verdicton the count charging Anthony with gang assault in the first degree was against theweight of the evidence. Without any credible evidence to establish that Anthonypossessed a knife, the weight of the evidence fails to support a finding that Anthonyacted with "intent to cause serious physical injury" to Brown (Penal Law§ 120.07). Nevertheless, the weight of the credible evidence does support afinding that Anthony acted with "intent to cause physical injury" to Brown and, thus, thatAnthony committed the lesser-included offense of gang assault in the second degree(Penal Law § 120.06). Consequently, I would reduce Anthony's convictionof gang assault in the first degree to gang assault in the second degree, vacate thesentence imposed under count two of the indictment, and remit the matter to the SupremeCourt, Queens County, for sentencing on Anthony's conviction of gang assault in thesecond degree (see CPL 470.15 [5]; People v Freeman, 98 AD3d 682, 683-684 [2012]).