| People v Myrick |
| 2016 NY Slip Op 00217 [135 AD3d 1069] |
| January 14, 2016 |
| Appellate Division, Third Department |
[*1](January 14, 2016)
| The People of the State of New York,Respondent, v El Kahliem Myrick, Also Known as Coop, Also Known as Naji,Also Known as Naji Coop, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered October 1, 2013, upon a verdict convicting defendant of the crimes of robberyin the first degree and robbery in the second degree.
Defendant and a codefendant, Jordan Renak, were charged in a five-count indictmentwith three counts of robbery in the first degree, one count of robbery in the seconddegree and one count of criminal possession of a weapon in the second degree, whichstemmed from their involvement in a robbery and shooting that occurred on October 26,2012 in the area of 166 Third Avenue in the City of Albany. In his pretrial omnibusmotion, defendant moved to, among other things, suppress oral statements that he madeto the police during a police interrogation, which motion County Court denied.Following a jury trial, defendant was acquitted of two counts of robbery in the firstdegree and one count of criminal possession of a weapon in the second degree andconvicted of one count of robbery in the first degree (count one) and one count ofrobbery in the second degree (count four). Defendant was sentenced to an aggregateprison term of seven years, to be followed by five years of postrelease supervision.Defendant appeals.
Initially, we address defendant's contention that the verdict was not supported bylegally [*2]sufficient evidence and was against the weightof the evidence because the People failed to provide corroborating evidence to supportthe testimony of the accomplice that implicated him in the crime. The standard forreviewing the legal sufficiency of evidence in a criminal case is "whether there is anyvalid line of reasoning and permissible inferences which could lead a rational person tothe conclusion reached by the jury on the basis of the evidence at trial and as a matter oflaw satisfy the proof and burden requirements for every element of the crime charged"(People v Bleakley, 69 NY2d 490, 495 [1987] [citation omitted]).
As relevant here, to prove that defendant was guilty of robbery in the first degree, thePeople had to establish that defendant "forcibly [stole] property and when, in the courseof the commission of the crime or of immediate flight therefrom, he or anotherparticipant in the crime . . . [c]ause[d] serious physical injury to any personwho [was] not a participant in the crime" (Penal Law § 160.15 [1]). Toprove that defendant was guilty of robbery in the second degree the People were requiredto establish that defendant "forcibly [stole] property" and that "[h]e [was] aided byanother person actually present" (Penal Law § 160.10 [1]). "A personforcibly steals property when he or she uses or threatens the immediate use of physicalforce upon another person for the purpose of . . . compelling the owner ofsuch property or another person to deliver up the property" (People v Griffin, 122 AD3d1068, 1069 [2014], lv denied 25 NY3d 1164 [2015] [internal quotationmarks, brackets and citations omitted]; see Penal Law § 160.00 [2];People v Gordon, 23 NY3d643, 649-650 [2014]).
Particular to defendant's appellate contentions, a person may be found guilty ofrobbery under a theory of accomplice liability when he or she, with the intent to rob,"solicits, requests, commands, importunes, or intentionally aids [another] person toengage in . . . conduct" that constitutes robbery (Penal Law§ 20.00; seePeople v Vicioso, 116 AD3d 1250, 1251 [2014]; People v Bush, 75 AD3d917, 918 [2010], lv denied 15 NY3d 919 [2010]). Although "[a] defendantmay not be convicted solely on the basis of accomplice testimony that lacks the supportof 'corroborative evidence tending to connect the defendant with the commission of [thecharged] offense' " (People v Rodriguez, 121 AD3d 1435, 1439 [2014], lvdenied 24 NY3d 1122 [2015], quoting CPL 60.22 [1]), the amount of additionalevidence necessary is only that which "may reasonably satisfy the jury that theaccomplice is telling the truth" (People v Reome, 15 NY3d 188, 192 [2010] [internalquotation marks and citation omitted]; see People v Rodriguez, 121 AD3d at1439). Importantly, "the role of the additional evidence is only to connect the defendantwith the commission of the crime, not to prove that he [or she] committed it" (Peoplev Hudson, 51 NY2d 233, 238 [1980]).
At trial, the People presented the testimony of the victim, who testified that at about7:30 p.m. on the evening in question, Eugene Royal called him, asking him to come overto Third Avenue to "drop off" a few bags of marihuana. The victim arrived at the parkinglot, waited for Royal for approximately 10 to 15 minutes, then left after hearing fromRoyal that he had been delayed. While sitting in his car and waiting for Royal in theparking lot a second time, the victim saw four people wearing hooded sweatshirts withthe hoods pulled up, not including Royal, approach him. One of the four individualsasked the victim whether he had marihuana to sell and, as the victim tried to get themarihuana, one person grabbed him and pointed a gun at him. The victim was thenpulled out of the car, punched in the back of his head and pushed further back to thecurb. A tussle then occurred between the victim and one person and, in the chaos thatensued as the victim tried to get back in his car, the victim was shot in the abdomen, forwhich he underwent emergency surgery. The victim testified that he did not know any ofthe people involved in the crime except for Royal—who arrived in the parking lotat some point during the robbery—and that he did not see the face of the personwho pointed the gun at him, but did see that such person wore a white hooded sweatshirtwith the word "Hollister" on it.
[*3] Rahjahmiere Cole, who pleaded guilty to participating in the robbery, testified that he,Renak and Royal were at a basketball court near the Third Avenue apartments at about7:30 p.m. on the night in question. They then met up with defendant, who had a gun onhim, at the Third Avenue apartments and planned to lure the victim to the parking lot androb him of some marihuana. Cole testified that the victim showed up in the parking lot,then left and came back. According to Cole, after the victim arrived the second time, he,Renak, Royal and defendant robbed the victim. Cole further testified that a tusslingbetween Royal and the victim ensued inside the victim's car and that defendant was alsoin the victim's car and the victim was shot. Finally, Cole testified that he did not knowwhat happened with the gun after the robbery and shooting.
Upon cross-examination, Cole admitted that his plea deal with the People wasconditioned on him providing cooperation and truthful testimony in defendant's trial.Cole testified that, during his interview with the police, he initially stated that he wasgoing to buy marihuana from the victim, not to rob him, but that he later changed hisstory and told the police that the intent was to rob the victim rather than to purchasemarihuana. Cole testified that he did know the victim before the crime and did not "reallyknow" who participated in the robbery, but that he heard some people on the streetduring the time of the crime say that a person named "Coop" was involved in therobbery.[FN1] Colefurther testified that, during the police interview, he identified defendant from a photoarray as a person he knew named "Coop," not as a person he saw involved in the robbery.Lastly, Cole testified that he knew Royal and that he saw Royal in the victim's car rightbefore the victim was shot. Upon redirect examination, Cole testified that defendant waswith him at the crime scene when the victim was robbed. Cole reiterated that defendanthad a gun on him.
Royal testified for the People that he only called the victim to buy marihuana. Royaltestified that he was in the victim's car at the time of the robbery, but denied participatingin the crime and stated that he did not know the identity of the perpetrators. Royal wasproperly impeached by the prosecutor with his prior grand jury testimony that indicatedthat he and defendant participated in the robbery and that defendant had the gun.
Victor Pizzola, a detective for the Albany Police Department, testified that he wassummoned by the Community Response Unit to collect a handgun located in Albany.According to Pizzola, the information regarding the location of the gun had come fromRoyal. Pizzola also testified that he responded to defendant's house to execute a searchwarrant but did not recover any evidence related to the crime. Robert Mulligan, adetective from the Albany Police Department Forensic Investigations Unit, testified thathe collected DNA samples and a large amount of fingerprints from the crime scene andlater found that the fingerprints collected from the outside of the victim's vehiclebelonged to Renak. Defendant's fingerprints were not found on the victim's car. DNAanalysis results showed that Royal's DNA was found on the gun, only the victim's DNAwas found on the car and samples collected from the crime scene matched the DNA fromthe victim.
Christopher Cornell, a detective for the Albany Police Department, testified that heinterviewed defendant, who stated that, at the time of the shooting, he was shopping in alocal store accompanied by his aunt, two teenaged girls and a toddler and that he waswearing a white, hooded sweatshirt. Video surveillance footage from that store wasadmitted into evidence and [*4]depicted a group of fivepeople, who appeared the same as defendant described, entering the store atapproximately 6:20 p.m. and leaving at approximately 6:45 p.m. Cornell also searcheddefendant's residence, which was located in the Third Avenue apartments, but did notfind a white hooded sweatshirt. Cornell also testified that surveillance video footagefrom the Albany Housing Authority depicted what occurred in front of defendant'sapartment and in the nearby parking lot where the robbery and shooting had occurred. Asillustrated by the video, at approximately 7:28 p.m., three individuals—twowearing light color hooded sweatshirts and one wearing a black hoodedsweatshirt—exited from defendant's apartment. At approximately 7:40 p.m., fourindividuals—two wearing light color hooded sweatshirts and two wearing blackhooded sweatshirts—exited from defendant's apartment and, after momentarilylingering, walked in the direction of the parking lot. At approximately 7:42 p.m., fourindividuals—two wearing light color hooded sweatshirts and two wearing blackhooded sweatshirts—walked toward the victim's car in the parking lot. Atapproximately 7:45 p.m., a fifth individual, wearing a black hooded sweatshirt, walkedtoward the victim's car. Immediately thereafter, a tussling ensued outside of the car afterwhich all five individuals ran away and the car rolled, coming to rest in a ditch.
On his direct case, defendant presented the testimony of two of his neighbors. Thefirst neighbor testified that she witnessed the incident from her porch—which hada view of the parking lot—and watched a man with a black hooded sweatshirtjump into a car and fight with the driver. She saw three people that she recognized as herneighbors standing near the car right before hearing a loud boom and two gun shots, atwhich point everyone ran. She testified that she did not see defendant at any point duringthe incident. The second neighbor, who knew defendant prior to the day in question,testified to seeing three men that he did not recognize in the area right before the robbery.He also testified that he had not seen defendant on that day and that he had not heard anygun shots. Further, this neighbor testified that it was common to see people wearingwhite hooded sweatshirts in his neighborhood.
Viewing the trial evidence in a light most favorable to the People, we find legallysufficient evidence to support defendant's convictions. Contrary to defendant's appellatecontention, the testimony of Cole was adequately corroborated by witness testimony andphysical evidence connecting defendant with the commission of the robbery.Specifically, Cole testified that, before meeting defendant, at about 7:30 p.m., Renak,Royal and he were at a basketball court near the Third Avenue apartments. Thistestimony was corroborated by the second neighbor's testimony and the video footageshowing three men exiting defendant's apartment. Cole testified that an altercationbetween Royal and the victim ensued inside the victim's car, which was corroborated bythe first neighbor's testimony and by the victim's testimony. Lastly, Cole testified that thevictim showed up twice in the parking lot, which was corroborated by the victim'stestimony.
As to defendant's claim that the verdict was against the weight of the evidence,where, as here, an alternative verdict would not have been unreasonable, we must, "likethe trier of fact below, weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony"(People v Bleakley, 69 NY2d at 495 [internal quotation marks and citationomitted]). According deference to the credibility determinations made by the jury and,after reviewing and weighing the evidence in the record in a neutral light, we areunpersuaded by defendant's contention that the jury's verdict was against the weight ofthe evidence (see People vMoyer, 75 AD3d 1004, 1006 [2010]).
We do, however, find error in County Court's ruling permitting Cornell to identifydefendant as a person depicted in the store surveillance video. In this regard, earlier inthe [*5]proceedings County Court had ruled that, to theextent that the People were going to offer such surveillance footage into evidence, theywere precluded from offering testimony identifying defendant in such footage. Cornellthen testified on direct examination that he obtained the video surveillance footage fromthe store where defendant had claimed to have been shopping at the time of the robberyand described a group of five people that entered at approximately 6:20 p.m. and left atapproximately 6:45 p.m., approximately one hour before the robbery. Upon the People'squestion, "And the group being [defendant], three women and a toddler," Cornellanswered, "That's correct." Defendant objected to the question and the answer, whichwas overruled by County Court. Inasmuch as this testimony violated County Court's priorruling because it identified defendant as being the individual in the video who wasaccompanied by three women and a toddler, it should have been precluded.[FN2]
Based upon the record before us, County Court's evidentiary error in permittingCornell's identification testimony of defendant in the surveillance video cannot bedeemed harmless. Specifically, under the particular factual circumstances of this case, theevidence of defendant's guilt, although legally sufficient to support the jury's verdict, wasnot overwhelming given the lack of direct evidence linking defendant to the crime andthe conflicting witness testimony regarding defendant's presence at the crime scene(see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Gray, 125 AD3d1107, 1108-1109 [2015]; People v Bellamy, 26 AD3d 638, 641 [2006]; People vRodwell, 246 AD2d 916, 918 [1998]). Accordingly, we reverse and remit for a newtrial.
Finally, we find defendant's argument that County Court erred in denying his motionto suppress to be without merit. Defendant's remaining contentions are unpreserved forour review.
Peters, P.J., McCarthy, Egan Jr. and Devine, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Albany County for anew trial on counts one and four of the indictment.
Footnote 1:Additional testimony attrial established that defendant was also known as "Coop" or "Naji Coop."
Footnote 2:"A lay witness may givean opinion concerning the identity of a person depicted in a surveillance photograph ifthere is some basis for concluding that the witness is more likely to correctly identify thedefendant from the photograph than is the jury" (People v Russell, 165 AD2d327, 333 [1991], affd 79 NY2d 1024 [1992] [citation omitted]; accord People v Sanchez, 95AD3d 241, 249 [2012], affd 21 NY3d 216 [2013]; see People v Coleman, 78AD3d 457, 458 [2010], lv denied 16 NY3d 829 [2011]). Here, the detectivehad met with defendant on a single occasion more than two weeks after the commissionof the crime, there was no evidence that defendant had changed his appearance prior totrial, and the record is devoid of any other circumstances suggesting that thejury—which had ample opportunity to view defendant—would be any lessable than the detective to determine whether defendant was, in fact, the individualdepicted in the video (see People v Coleman, 78 AD3d at 458). Thus, CountyCourt's prior ruling was proper.