| People v Croley |
| 2018 NY Slip Op 04984 [163 AD3d 1056] |
| July 5, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jahmeek Croley, Appellant. |
Matthew C. Hug, Albany, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered January 21, 2015, upon a verdict convicting defendant of the crime of murder in thesecond degree.
Defendant was indicted on charges of murder in the second degree and conspiracy in thesecond degree in connection with a shooting in October 2013 that resulted in the victim's death.During a joint jury trial with codefendant Jovell White-Span, the People argued that White-Spanshot the victim with the intent to kill and that defendant aided him in doing so with knowledge ofWhite-Span's intent. Following trial, defendant and White-Span were each convicted of murderin the second degree and defendant was sentenced, as a second felony offender, to a prison termof 25 years to life. Defendant appeals.
Defendant contends that the verdict was not supported by legally sufficient evidence and wasagainst the weight of the evidence. "When considering a challenge to the legal sufficiency of theevidence, we view the evidence in the light most favorable to the People and evaluate whetherthere is any valid line of reasoning and permissible inferences which could lead a rational personto the conclusion reached by the jury on the basis of the evidence at trial and as a matter of lawsatisfy the proof and burden requirements for every element of the crime charged" (People v Robinson, 156 AD3d1123, 1124 [2017] [internal quotation marks and citations omitted], lv denied 30NY3d 1119 [2018]). As relevant here, a person is guilty of murder in the second [*2]degree when, "[w]ith intent to cause the death of another person, he[or she] causes the death of such person or of a third person" (Penal Law § 125.25[1]). "[T]he intent to kill may be inferred from the surrounding circumstances and a defendant'sactions" (People v Stanford, 130AD3d 1306, 1308 [2015] [internal quotation marks and citation omitted], lv denied26 NY3d 1043 [2015]). Inasmuch as the People did not claim that defendant fired the fatalgunshots, the charges against him were based on accessorial liability. A defendant may becriminally liable for the conduct of another person "when, acting with the mental culpabilityrequired for the commission thereof, he [or she] solicits, requests, commands, importunes, orintentionally aids such person to engage in such conduct" (Penal Law § 20.00).
The evidence at trial was largely circumstantial. Indeed, no murder weapon was found, therewere no eyewitnesses who saw the killer in the act of shooting the victim and the People did notoffer any evidence regarding a motive for the killing. Instead, the People, for the most part, reliedon video surveillance, cell phone records and testimony from witnesses who were in the vicinitywhen the shooting occurred to establish a timeline of events and proffer a theory of the case.Such evidence shows that, in the early morning hours of October 19, 2013, the victim and twofriends, Donald Columbus and Donovan Johnson, left a party and went to Willie's Sports Bar(hereinafter Willie's) on Washington Avenue in the City of Albany. They drove Columbus' car,which they parked on nearby Cortland Place. The victim and Columbus left Willie'sapproximately 30 minutes after they arrived and began to walk back to Columbus' vehicle wherethey intended to smoke marihuana. On their way, they encountered two other individuals whohad also attended the party and were walking to Willie's—the victim's cousin, JamilJordan, and Steven Whittingham—with whom they had a brief conversation. Jordanjoined the victim and Columbus while Whittingham, who testified that he does not usemarihuana, continued walking alone down Washington Avenue toward Willie's. Shortlythereafter, while he was in the proximity of Willie's, Whittingham heard gunshots coming fromthe direction of Cortland Place. Columbus and Jordan likewise testified that they heard gunshotsas they approached Columbus' car on Cortland Place. The victim was struck by three bullets,including one that struck him in the head. A bystander transported him to the hospital where hedied without regaining consciousness.
The People's theory of the case was that White-Span deliberately sought out the victim andintentionally killed him and that defendant assisted White-Span by tracking the victim'swhereabouts, transporting White-Span to the scene and acting as the getaway driver. The primaryevidence in support of that theory came from surveillance video that shows the activities of thevictim, defendant and White-Span, and cell phone records showing that frequent calls were madebetween cell phone numbers associated with defendant and White-Span during the relevant timeperiod.[FN1] Surveillancevideo from outside of Willie's depicts the victim entering the bar at approximately 2:03 a.m.Defendant entered Willie's approximately five minutes later, but left after only three minutes andis depicted walking away. He placed a 16-second phone call to White-Span at 2:10 a.m.,approximately two minutes after he left Willie's, and made additional [*3]brief calls to White-Span at 2:14 a.m. and 2:25 a.m.
A surveillance camera outside a nearby Stewart's store shows a vehicle operated by defendantdriving into a parking space at approximately 2:37 a.m. and defendant and White-Span exitingthe vehicle. White-Span immediately pulls his hood up and quickly walks away from the vehicle,and defendant follows behind him at a distance. White-Span is seen walking on WashingtonAvenue towards Willie's with defendant following, still at a distance. Defendant then reentersWillie's at approximately 2:39 a.m., after being frisked by the bouncer. A person who appears tobe White-Span paces and stands on the sidewalk in front of Willie's between approximately 2:42a.m. and 2:46 a.m. Meanwhile, video from inside of Willie's taken at approximately 2:42 a.m.shows defendant talking to another individual. A series of extremely short phone calls were madebetween defendant and White-Span in quick succession while defendant was in Willie's, anddefendant exited Willie's at 2:48 a.m.
The victim left Willie's with another individual at 3:05 a.m. and they walked away in thedirection of Cortland Place. Defendant made a 10-second phone call to White-Span one minutelater, at the same time that White-Span is seen walking in the same direction that was taken bythe victim and his companion. It appears that the shots were fired at approximately 3:08 a.m.,when the video depicts the bouncer ushering people away from the sidewalk and defendantrunning on the sidewalk in front of Willie's in the direction of the Stewart's parking lot; notably,defendant is the only person seen running in the video. Christopher Cornell, an Albany policedetective, testified that it would have been impossible for defendant to have been the shooterbecause he could not have made it from Cortland Place, where the shooting occurred, to Willie'swithin seconds after the shots were fired. Defendant is seen returning to the vehicle at Stewart's.Between 3:10 a.m. and 3:12 a.m., there were a series of quick phone calls between defendant andWhite-Span. During that same two-minute period, the vehicle operated by defendant was seenproceeding down Washington Avenue before it returned to the Stewart's parking lot where aperson who appears to be White-Span entered the vehicle at 3:12 a.m.
The foregoing narrative is consistent with the testimony of Columbus, Jordan andWhittingham and is further corroborated by testimony from two additional individuals who werein the area when the shooting occurred. Huie Courtney testified that he was walking onWashington Avenue at approximately 3:00 a.m. and heard approximately five gunshots while hewas standing outside of the Smokin' Bull Tavern. He explained that there were initially twogunshots, which were followed by three others. According to Courtney, the gunshots soundedlike they were coming from Cortland Place near Willie's. After hearing the gunshots, Courtneycontinued walking down the street when he observed a "short black male with shoulder-lengthdreads" with dark clothing and lettering on his shirt walking toward him—a descriptionconsistent with White-Span's appearance. As this individual was crossing the street, Courtneysaw him "take his hood off," at which point "a skull cap or a do-rag fell off."[FN2] He testified that this individualwas walking fast, with his hands in his hoody "like he was just trying to get away from the scene"and that, once he turned the corner, "he took off." Upon reaching the corner of Cortland Place,Courtney saw the victim lying in the street surrounded by blood. He also saw people outside ofWillie's. He testified that he kept walking and then saw another individual who [*4]was "tall" with "dark skin" and "dark clothes" "running the oppositeway" of the man with the dreadlocks.
Timothy Pfeiffenberger, a bouncer at the Smokin' Bull Tavern, testified that he heard severalgunshots—two initially, followed by another three or four—from the vicinity ofCortland Place at approximately 3:00 a.m. He testified that he immediately saw a person fittingWhite-Span's description jog towards him from the intersection of Cortland Place andWashington Avenue while running in front of some traffic and in between some cars. During histestimony, Pfeiffenberger identified this individual as White-Span and testified that White-Spanappeared to be fleeing the scene. Finally, the police interviewed White-Span and showed him therelevant surveillance video. He denied knowing the person who was identified as defendant andclaimed that he did not recognize the vehicle operated by defendant. The People also submitted avideo recording depicting White-Span making a phone call after police left the interview roomduring which White-Span can be heard saying, "this [is] Snow from the yard . . . Ineed you to f. . .ing tell Meek that they got me downtown . . . tell himit's an emergency."
When viewed in the light most favorable to the People, the circumstantial evidence set forthabove was legally sufficient to support permissible inferences that White-Span intentionally shotand killed the victim, and that defendant had knowledge of White-Span's plan and intentionallyaided him. "Despite the [necessary] elements being supported by some credible evidence,because a different [verdict] would not have been unreasonable this Court must independentlyexamine the evidence further, viewing it in a neutral light to see if the verdict is against theweight of the evidence" (People vGraham, 107 AD3d 1296, 1297-1298 [2013] [internal quotation marks and citationsomitted]). Even if we accept that the evidence proved beyond a reasonable doubt thatWhite-Span intentionally caused the victim's death by shooting him and that defendantintentionally aided White-Span in locating and isolating the victim, the evidence does not provebeyond a reasonable doubt that defendant knew—before the shootingoccurred—that White-Span planned to kill the victim, because defendant could have hadother equally plausible reasons for wanting access to the victim, such as robbery or assault.Similarly, the fact that White-Span did not enter Willie's does not establish that defendant knewthat White-Span was armed with a gun; White-Span could have chosen not to enter for a varietyof other reasons, such as being armed with a knife, possessing drugs or wanting to avoid beingseen by the victim.
In light of the People's failure to establish beyond a reasonable doubt that defendant sharedWhite-Span's intent to kill the victim, the judgment of conviction must be reversed and theindictment against defendant dismissed (see People v Akptotanor, 158 AD2d 694, 695[1990], affd 76 NY2d 1000 [1990]; see also People v Graham, 107 AD3d at1298). Based on the foregoing, we need not consider defendant's remaining arguments (seePeople v Graham, 107 AD3d at 1298).
McCarthy, J.P., Egan Jr., Devine and Mulvey, JJ., concur. Ordered that the judgment isreversed, on the facts, and indictment dismissed.
Footnote 1:The People submitted evidencethat would permit the jury to conclude that defendant and White-Span were in possession of thecell phones used to make these calls. Inasmuch as we must review the evidence in the light mostfavorable to the People when conducting our legal sufficiency analysis, we refer to the calls ashaving been made between defendant and White-Span.
Footnote 2:A do-rag that the policerecovered on Washington Avenue contained White-Span's DNA.