| People v Pratcher |
| 2015 NY Slip Op 09730 [134 AD3d 1522] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vShaquar Pratcher, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered May 14, 2014. The judgment convicted defendant, upon a nonjury verdict,of murder in the second degree, burglary in the first degree (two counts) and criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him after a bench trialof, inter alia, murder in the second degree (Penal Law § 125.25 [3] [felonymurder]). The conviction arises from a home invasion burglary during which the96-year-old victim sustained, among other injuries, a subdural hematoma and so manybroken facial bones that his skull remained distorted when he died approximately fivemonths later.
We reject defendant's contention that the testimony of the two accomplices wasinsufficiently corroborated. The Criminal Procedure Law provides that a defendant "maynot be convicted of any offense upon the testimony of an accomplice unsupported bycorroborative evidence tending to connect the defendant with the commission of suchoffense" (CPL 60.22 [1]). Corroborating evidence is sufficient if it " 'tends toconnect the defendant with the commission of the crime in such a way as may reasonablysatisfy the [factfinder] that the accomplice is telling the truth' " (People v Reome, 15 NY3d188, 192 [2010], quoting People v Dixon, 231 NY 111, 116 [1921]; see People v Mohamed, 94AD3d 1462, 1463 [2012], lv denied 19 NY3d 999 [2012],reconsideration denied 20 NY3d 934 [2012]). Therefore, contrary to defendant'scontention, the statute "need not be read . . . to require that all corroborationthat depends to any degree on the accomplice's testimony be ignored . . .There can be corroborative evidence that, read with the accomplice's testimony, makes itmore likely that the defendant committed the offense, and thus tends to connect him to it"(Reome, 15 NY3d at 194). Therefore, "some evidence may be consideredcorroborative even though it simply supports the accomplice testimony, and does notindependently incriminate the defendant" (id.; see People v Lipford, 129AD3d 1528, 1529 [2015]), or if it " 'harmonized' " with theaccomplices' testimony (Peoplev McRae, 15 NY3d 761, 762 [2010], rearg denied 15 NY3d 902 [2010];see People v Highsmith,124 AD3d 1363, 1364 [2015], lv denied 25 NY3d 1202 [2015]).
Here, there was evidence from several sources corroborating the testimony of theaccomplices. The testimony of the accomplices established the way in which the crimewas committed, including that they and defendant used cell phones throughout theincident. In addition, one of the accomplices testified that, after the incident, defendantsaid that "the old man wouldn't shut up . . . so he had to hit him[,] [and]when he hit him, he felt his jaw getting soft." The accomplices also testified that theyheard a gunshot as they fled the scene of the burglary, and defendant told one of themthat he accidentally had shot himself in the leg while hopping a fence.
[*2] In support of that testimony, the People introducedcorroborating evidence from several sources tending to show that the accomplices weretelling the truth and that defendant was one of the perpetrators. First, there isoverwhelming evidence establishing that the crime occurred in the manner in which theaccomplices testified. The security system at the victim's home recorded the events thattook place outside the home, and that video recording depicts the perpetrators makingcell phone calls, exchanging a handgun, and entering the home through a window atnight, then carrying away items of personal property when they later left the home. Thereis also overwhelming medical evidence establishing that the victim was savagely beatenduring the incident. That evidence "may be considered corroborative even though itsimply supports the accomplice testimony, and does not independently incriminate thedefendant" (Reome, 15 NY3d at 194).
Moreover, there is also sufficient corroborating evidence tending to connectdefendant with the commission of the crime. First and foremost, the People introducedevidence that defendant was treated two days after the incident herein for a gunshotwound to his leg, that he told the medical providers and a police officer that he sustainedthe wound two days earlier, i.e., on the day of the incident herein, and that the officer wasunable to find any evidence corroborating defendant's version of how defendant hadsustained the wound. In addition, although the video recording by itself is not clearenough to establish that defendant was one of the perpetrators, it is sufficiently clear todemonstrate that the accomplices are telling the truth about the events that occurredoutside the home, including that a person who is consistent with defendant's height andbuild participated in the crime along with the accomplices. In addition, the Peopleintroduced in evidence cell phone records, call logs, and supporting testimonydemonstrating where the subject cell phones were used, and that evidence establishes thatcell phone calls were made as the accomplices testified. The People also introducedexpert medical testimony establishing that the victim sustained numerous facial fracturesof his orbital, sinus, and jaw bones, which is consistent with defendant's statement that hefelt the victim's "jaw getting soft." Based on all the evidence, we conclude that thetestimony of the accomplices was sufficiently corroborated inasmuch as the evidence" 'tend[ed] to connect the defendant with the commission of the crime in such away as [could] reasonably satisfy the [factfinder] that the accomplice[s] [were] telling thetruth' " (id. at 192; see CPL 60.22 [1]; People v Robinson, 111 AD3d1358, 1358 [2013], lv denied 22 NY3d 1141 [2014]).
Defendant further contends that the evidence is not legally sufficient to establish thatthe injuries that the victim sustained during the commission of the crimes were the causeof his death approximately five months later. Although defendant moved for a trial orderof dismissal, he did not contend in that motion that the victim's death was not theforeseeable result of the injuries the victim sustained during the commission of thecrimes, and thus failed to preserve his legal sufficiency contention for our review (seePeople v Gray, 86 NY2d 10, 19 [1995]; see also People v Ingram, 67 NY2d897, 899 [1986]). In any event, it has long been the rule in New York that " '[i]fa person inflicts a wound . . . in such manner as to put life in jeopardy, anddeath follows as a consequence of this felonious and wicked act, it does not alter itsnature or diminish its criminality to prove that other causes cooperated in producing thefatal result. Indeed, it may be said that neglect of the wound or its unskillful andimproper treatment, which were of themselves consequences of the criminal act, whichmight naturally follow in any case, must in law be deemed to have been among thosewhich were in contemplation of the guilty party, and for which he is to be heldresponsible' " (People v Kane, 213 NY 260, 274 [1915]). Thus, "[f]orcriminal liability to attach, a defendant's actions must have been an actual contributorycause of death, in the sense that they 'forged a link in the chain of causes which actuallybrought about the death' " (Matter of Anthony M., 63 NY2d 270, 280[1984]). Additionally, the "defendant's acts need not be the sole cause of death; wherethe necessary causative link is established, other causes, such as a victim's preexistingcondition, will not relieve the defendant of responsibility for homicide . . .By the same token, death need not follow on the heels of injury" (id. at 280).
Here, the evidence established that defendant repeatedly struck the 96-year-oldvictim in the face and head, thereby fracturing the victim's orbit, sinuses, and jaw innumerous places and causing a subdural hematoma, and that many of those injuries hadnot healed at the time of his death approximately five months later. Thus, we concludethat "the ultimate harm, i.e., death, was a 'reasonably foreseeable result of [that]conduct' " (People vCox, 21 AD3d 1361, 1362-1363 [2005], lv denied 6 NY3d 753 [2005]).Although defendant's expert testified that the victim died of his advancingAlzheimer's-type dementia, the Medical Examiner testified that the injuries that the [*3]victim sustained in this attack were the cause of his death.Thus, the court "was presented with conflicting expert testimony regarding the cause ofdeath, and the record supports its decision to credit the People's expert testimony" (People v Fields, 16 AD3d142, 142 [2005], lv denied 4 NY3d 886 [2005]; see generally People vMiller, 91 NY2d 372, 380 [1998]). Consequently, we conclude that, although otherpossible causes of the victim's death were not eliminated, the medical evidence, viewedin the light most favorable to the prosecution, is legally sufficient to establish thatdefendant's acts "were at least a contributing cause of" the victim's death (AnthonyM., 63 NY2d at 281). We further conclude that, with respect to all of the charges, theevidence, viewed in the light most favorable to the People (see People v Contes,60 NY2d 620, 621 [1983]), is legally sufficient to support the conviction. Viewing theevidence in light of the elements of the crimes in this bench trial (see People v Danielson, 9NY3d 342, 349 [2007]), we further conclude that the verdict is not against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]).
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P.,Peradotto, Carni, Lindley and Whalen, JJ.