| People v Chapman |
| 2020 NY Slip Op 02330 [182 AD3d 862] |
| April 23, 2020 |
| Appellate Division, Third Department |
[*1](April 23, 2020)
| The People of the State of New York,Respondent, v Olaijaide Chapman, Also Known as Buddha, Also Known asBuddha Luv, Appellant. |
Lucas G. Mihuta, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), forrespondent.
Reynolds Fitzgerald, J. Appeal from a judgment of the County Court of AlbanyCounty (Lynch, J.), rendered June 22, 2016, upon a verdict convicting defendant of thecrimes of attempted murder in the first degree, conspiracy in the second degree (twocounts), attempted murder in the second degree and assault in the first degree (twocounts).
Defendant was charged in an eight-count indictment with attempted murder in thefirst degree, conspiracy in the second degree (two counts), attempted murder in thesecond degree, assault in the first degree (two counts) and attempted robbery in the firstdegree (two counts) arising from allegations that he hired two individuals to shoot androb the victim. Following a jury trial, defendant was convicted of all charges except theattempted robbery charges. Defendant was sentenced to concurrent prison terms, thegreatest of which was 25 years to life. Defendant appeals.
Defendant argues that the verdict was against the weight of the evidence as there wasno independent witness testimony except for the coconspirators who, he contends,significantly contradicted one another. He further argues that the corroborating evidenceestablished a very weak circumstantial case. In determining whether a verdict issupported by the weight of the evidence, we must first consider whether a differentverdict would have been unreasonable and, if it would not, we "weigh the relativeprobative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony" (People v Bleakley, 69 NY2d490, 495 [1987] [internal quotation marks and citation omitted]; see People v Lang, 164 AD3d963, 966 [2018]). "A defendant may not be convicted of any offense upon thetestimony of an accomplice unsupported by corroborative evidence tending to connectthe defendant with the commission of such offense" (CPL 60.22 [1]; see People v Jones, 166 AD3d1394, 1395 [2018], lv denied 33 NY3d 950 [2019]). "The corroboratingproof does not need to demonstrate [the] defendant's guilt; instead, when read with the[coconspirators'] testimony, the proof makes it more likely that the defendant committedthe offense, and thus tends to connect him [or her] to it" (People v Fields, 160 AD3d1116, 1117 [2018] [internal quotation marks, brackets and citations omitted], lvdenied 31 NY3d 1116 [2018]).
As relevant here, for a defendant to be found guilty of attempted murder in the firstdegree, the People have to prove that the defendant, "[w]ith intent to cause the death ofanother person," attempted to "cause[ ] the death of such person or of a third person" anddid so by "procur[ing the] commission of the killing pursuant to an agreement with aperson other than the intended victim to commit the same for the receipt, or inexpectation of the receipt, of anything of pecuniary value" (Penal Law§§ 110.00, 125.27 [1] [a] [vi]). "[A] conviction for attempted murderin the second degree requires the People to prove that, with intent to cause the death ofanother, the defendant engaged in conduct that tended to effect the commission of thatcrime" (People v Demellier,174 AD3d 1120, 1121 [2019], lv denied 34 NY3d 980 [2019], citing PenalLaw §§ 110.00, 125.25 [1]). "A person is guilty of conspiracy in thesecond degree when, with intent that conduct constituting a class A felony be performed,he [or she] agrees with one or more persons to engage in or cause the performance ofsuch conduct" (Penal Law § 105.15). "A person is guilty of assault in thefirst degree when . . . [w]ith intent to cause serious physical injury toanother person, he [or she] causes such injury to such person . . . by meansof a deadly weapon or a dangerous instrument" (Penal Law § 120.10 [1])." 'Serious physical injury' means physical injury which creates a substantial riskof death" (Penal Law § 10.00 [10]), and " '[d]angerous instrument'means any instrument, article or substance . . . which, under thecircumstances in which it is used, attempted to be used or threatened to be used, is readilycapable of causing death or other serious physical injury" (Penal Law§ 10.00 [13]; seePeople v Pine, 126 AD3d 1112, 1114 [2015], lv denied 27 NY3d 1004[2016]). "As relevant to accessorial liability, 'when one person engages in conduct whichconstitutes an offense, another person is criminally liable for such conduct when, actingwith the mental culpability required for the commission thereof, he or she solicits,requests, commands, importunes, or intentionally aids such person to engage in suchconduct' " (People vTrappler, 173 AD3d 1334, 1335 [2019] [brackets and citation omitted], lvdenied 34 NY3d 985 [2019], quoting Penal Law § 20.00).
The evidence at trial revealed that defendant had been shot by the victim two yearsearlier. The People's theory of the case was that, in retaliation, defendant solicited theparticipation of two coconspirators to shoot and rob the victim. Both coconspiratorstestified that, at first, they did not think that defendant was serious. However, after herepeated the solicitation and then offered them "a couple thousand dollars," they agreedto rob and kill the victim. One of the coconspirators contacted the victim and arranged tomeet him under the guise of purchasing tickets for an event. After purchasing the tickets,one of the coconspirators shot the victim in the head. They both averred that, thefollowing day, defendant delivered payment—although a lesser amount thanpromised—to one of the coconspirators. Although the coconspirators pointed thefinger at each other for the actual shooting of the victim, their accounts of the meetingswith defendant, his offer to pay them to shoot the victim and their testimony that theywere paid $500 were substantially similar.
In addition, the neurosurgeon who treated the victim testified that the victim requiredimmediate life-saving surgery due to traumatic wounds to his brain, right eye and facialbones. The neurosurgeon also testified that, as a result of the shooting, the victimsustained extensive damage to the right side of his brain, lost his right eye, is presentlyunable to communicate and suffers from seizures. Other evidence consisted ofdefendant's own tweets and text messages between himself and the coconspirators, thepinger account set up on the telephone of one of the coconspirators and the surveillancevideo of defendant going to one of the coconspirators' houses the night of the shooting.Viewing the evidence in a neutral light, a different verdict would not have beenunreasonable if the jury had declined to credit the testimony of the coconspirators giventhe inconsistencies and conflicts between them, including who shot the victim (see People v Maschio, 117AD3d 1234, 1236 [2014]). Nevertheless, we find that there was sufficientcorroborating evidence to support the accomplice testimony and, deferring to the jury'scredibility determinations, that the verdict is supported by the weight of the evidence (see People v Slaughter, 150AD3d 1415, 1418 [2017]).
Defendant further argues that County Court erred in admitting a redacted video of hispolice interrogation in which he remained silent, as it was highly prejudicial and violatedstate evidentiary law. We agree. Defendant moved to suppress his statements madeduring his videoed interrogation by the police. Following a combinedHuntley/Wade/Dunaway hearing, County Court found that defendant's statementswere knowingly, voluntarily and freely made. However, County Court precluded thePeople's use of the video on the ground that the prejudicial impact of the video faroutweighed its probative value, as, during the course of the interview, defendant "wasessentially unresponsive verbally to questions posed" and the line of questioning"effect[ed] an impermissible burden shifting the obligation on defendant." County Courtalso denied the People's request to reconsider the use of the video a few months later.However, at a later hearing, the People raised the issue of presenting a redacted versionof the video, and the court changed its earlier ruling. As a result, the redacted video wasultimately admitted into evidence during the People's case-in-chief and was the last pieceof evidence shown to the jury before the People rested their case. County Court failed toissue the jury a curative instruction relating to the video.
"It is a well-established principle of state evidentiary law that evidence of adefendant's pretrial silence is generally inadmissible" (People v Williams, 25 NY3d185, 190 [2015] [citation omitted]). There are many reasons why an individual maychoose not to speak to the police; however, there is a substantial risk that jurors mightconstrue such silence as an admission and draw an unwarranted inference of guilt(see id. at 191). Here, the admitted video consists of the police recounting theircase against defendant, including reading his texts aloud and being met largely, if notcompletely, with silence. Defendant is shown slouching, with an ankle shackle securinghim to the chair, and he is dressed in a hooded sweatshirt with oversized sweatpantsworn in a manner so as to expose his underwear. His attitude appears to be dismissiveand, at one point, he laughs in response to police questioning. Throughout the video,defendant makes no inculpatory statements. Both detectives who appear in the videowere presumably available to testify and, in fact, one of them did testify.
Allowing evidence of defendant's selective silence was highly prejudicial becausethere was a significant risk that the jurors deemed defendant's failure to answer the policeofficer's questions to be an admission of guilt (see id. at 194). Given its highlyprejudicial nature and that it contained little to no probative value, we agree withdefendant that County Court erred in allowing the redacted video to be shown to the jury(see id. at 193-194; People v Conyers, 52 NY2d 454, 460 [1981]). Thiserror was compounded by the People's use of the video during summation, wherein theprosecutor highlighted and commented upon defendant's silence during the policeinterrogation. In doing this, the People improperly shifted the burden to defendant (see People v Rupnarine, 140AD3d 1204, 1205 [2016]; People v Wright, 133 AD3d 1097, 1097-1098 [2015]).
Where, as here, the error is nonconstitutional in nature, we must determine whether itwas harmless (see People vSaxe, 174 AD3d 958, 961 [2019]). "[A]n error is harmless if the proof of [the]defendant's guilt is overwhelming and there is no significant probability that the jurywould have acquitted [the] defendant had the error not occurred" (People vWilliams, 25 NY3d at 194). Because the proof was mostly circumstantial and therewere numerous inconsistences between the testimony given by the coconspirators, it iscertainly possible that the jury would have acquitted defendant had it not viewed thevideo. In addition, the proof of defendant's guilt was not overwhelming. As such, wecannot deem the error to be harmless and the judgment must be reversed (seeid.).
Defendant's remaining contentions are rendered academic by our determination.
Egan Jr., J.P., Clark, Aarons and Pritzker, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Albany County forfurther proceedings not inconsistent with this Court's decision.