| People v Green |
| 2021 NY Slip Op 02841 [194 AD3d 1106] |
| May 6, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Messiah Green, Appellant. |
Tina K. Sodhi, Alternate Public Defender, Albany (Steven M. Sharp of counsel), forappellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Clark, J. Appeal from a judgment of the Supreme Court (McDonough, J.), rendered January12, 2018 in Albany County, upon a verdict convicting defendant of the crimes of robbery in thesecond degree (three counts), assault in the second degree, grand larceny in the fourth degree andcriminal possession of stolen property in the fourth degree (four counts).
Sometime during the 8:00 hour on the evening of March 27, 2017, the victim was walking inhis neighborhood when he encountered three men that held him up at gun point, struck him in thehead several times and stole his iPhone and wallet, which contained several credit cards and adebit card. The victim reported the incident shortly after it occurred, and law enforcement wasable to track the location of the stolen cell phone with the "Find my iPhone" application.Ultimately, based on real-time location data received from the application, law enforcementstopped a vehicle with four occupants—defendant and his codefendants, ZecharihasChaney, Kieshawn Chaney and Raymeen Cooper—and discovered the victim's wallet andcell phone inside. Defendant was subsequently indicted, together with his codefendants, on thecharges of robbery in the second degree (three counts), assault in the second degree, grandlarceny in the fourth degree and criminal possession of stolen property in the fourth degree (fourcounts). Defendant was convicted as charged following a jury trial and he moved, prior tosentencing, to set aside the verdict pursuant to CPL 330.30 (3). Supreme Court denied the motionwithout a hearing and thereafter sentenced defendant, as a second felony offender, to variousconcurrent sentences, the longest of which was 10 years in prison, followed by five years ofpostrelease supervision, for each of the three convictions of robbery in the second degree.Defendant appeals, and we now reverse and dismiss the indictment against defendant.
Defendant argues that his convictions are not supported by legally sufficient evidence and areagainst the weight of the evidence. Specifically, defendant asserts that the People failed to provethat he was one of the three perpetrators who robbed and assaulted the victim or that heknowingly possessed the victim's stolen credit and debit cards. Defendant also argues that theevidence failed to establish the element of physical injury required for his convictions of robberyin the second degree and assault in the second degree, as charged in counts 1 and 4 of theindictment.[FN1] We agreewith defendant on all three points and, thus, find that his convictions are not supported by legallysufficient evidence and are against the weight of the evidence.
We turn first to defendant's convictions for robbery in the second degree, assault in thesecond degree and grand larceny in the fourth degree under counts 1 through 5 of the indictment.As relevant here, "[a] person is guilty of robbery in the second degree when he [or she] forciblysteals property and" he or she "[*2]is aided by another personactually present" or, "[i]n the course of the commission of the crime or immediate flighttherefrom, he [or she] or another participant in the crime . . . [c]auses physicalinjury to any person who is not a participant in the crime" or "[d]isplays what appears to be a. . . firearm" (Penal Law § 160.10 [1], [2] [a], [b]). Additionally, "[a]person is guilty of assault in the second degree when . . . [i]n the course of and infurtherance of the commission or attempted commission of a felony, . . . or ofimmediate flight therefrom, he [or she], or another participant . . . causes physicalinjury to a person other than one of the participants" (Penal Law § 120.05 [6]).Further, "[a] person is guilty of grand larceny in the fourth degree when he [or she] stealsproperty and when . . . [t]he property, regardless of its nature and value, is takenfrom the person of another" (Penal Law § 155.30 [5]). As with all convictions, thePeople must prove the issue of identity beyond a reasonable doubt—that is, that thedefendant was the person who committed the charged crimes (see People v Warren, 76NY2d 773, 775 [1990]; People v Whalen, 59 NY2d 273, 279 [1983]).
At trial, the victim testified that he was walking alongside the road in his neighborhood onthe evening in question and that he "was carrying a red flashing baton so [that] cars could see[him]" in the dark. He stated that, as he was walking, he heard footsteps rapidly approachingbehind him and felt a hand hit his shoulder and spin him around. The victim testified that he thenobserved a man standing directly in front of him with a gun and two other men—one oneither side. The victim asserted that he was shoved to his knees and that the perpetrators beganshouting at him to turn over his belongings. He stated that he was struck on the left and rightsides of his head as he was fumbling to take out his wallet and cell phone and that he was struckagain—knocking him onto his side—once he turned them over. The victim testifiedthat he "must have blacked out for a second" and that, as he was coming out of a "daze[ ]," he felt"something bump into [his] head" and then felt and heard a "puff, click . . . three orfour times in rapid succession." The victim stated that he remained lying on his side and"eventually heard a car driving away," at which point he "slowly started picking [himself] up."The victim testified that it took him "a couple minutes to jog home" and that, once he arrivedhome, he relayed his encounter to his spouse and then called 911.
The evidence reflected that several law enforcement officers responded to the victim's home,where the victim had already begun tracking his stolen cell phone with the "Find my iPhone"application. Law enforcement officers that responded to the victim's home testified that thevictim reported being robbed and assaulted by three black men and that, with the assistance ofthe "Find my iPhone" application, they coordinated [*3]a searchto locate the stolen wallet and cell phone. Law enforcement officers involved in the searchtestified that, when they began tracking the cell phone, the application indicated that the cellphone was at a particular liquor store in the City of Albany. However, as established by theevidence, law enforcement thereafter determined, based upon the speed at which the locationdata was updating, that the cell phone had left the liquor store in a vehicle. The testimonydemonstrated that law enforcement tracked the cell phone over several blocks in the City ofAlbany before ultimately stopping the vehicle containing the cell phone. The evidence, includingtestimony and dash cam video footage, established that four black men were in the vehicle at thetime that it was pulled over, with Zecharihas Chaney in the driver seat, Kieshawn Chaney in thefront passenger seat, Cooper in the rear driver side seat and defendant in the rear passenger sideseat. The victim's cell phone and wallet were found during a search of the vehicle, but a gun wasnot.
The evidence presented by the People did not establish a firm timeline of events. The victimdid not testify to the approximate time of the robbery and assault. Rather, in the course ofquestioning the victim, the prosecutor supplied the approximate time of "a little bit before 8:30"p.m.[FN2] The People failedto put on any proof that revealed the time at which the victim made the 911 call, when theresponding law enforcement officers arrived at the victim's home or when the vehicle containingthe cell phone was stopped. However, video footage obtained from the liquor store demonstratedthat the vehicle arrived at the liquor store around 8:41 p.m., where it remained for a total of six toseven minutes. The footage reveals that, during that time, both Zecharihas Chaney and KieshawnChaney separately spoke to the occupant(s) of a nearby parked vehicle and that ZecharihasChaney entered the liquor store. The footage does not reveal whether there are additionalpassengers in the vehicle. It is unclear how soon after the vehicle left the liquor store that it wasstopped by the police.
On the issue of identity, the testimony demonstrated that, in the aftermath of the robbery andassault, the victim could not provide descriptions of his assailants, aside from stating that he hadbeen robbed and assaulted by three black men. At trial, the victim testified that he had been ableto make some observations of his assailants for "[a] few seconds" after being spun around.According to the victim, the armed man in the middle wore a tight fighting mask and "a darksweatshirt or jacket" with "silver accents of writing" and "had a lighter skin tone" and "was alittle shorter maybe" than the men on either side of him. With respect to the man to the left of thearmed man, the victim testified that the bottom half of the man's face was covered, that the manwas taller than him and the armed man and that the man was [*4]black with a "darker skin tone than the man in the middle." As forthe man to the right of the armed man, the victim stated that the man's face was covered and thathe "also appeared a little taller" and had a "darker skin tone" than the armed man. The victimtestified that he was unsure what color clothing the unarmed men were wearing. Uponcross-examination, the victim acknowledged that his testimony at trial was the first time that hehad provided any description of his assailants' skin tones, having simply described them as"black" on all previous occasions, including at the preliminary hearing and before the grandjury.
In our view, the evidence presented by the People failed to prove beyond a reasonable doubtthat defendant was one of the three perpetrators of the robbery and assault. The evidenceestablished that all three of defendant's codefendants pleaded guilty to robbing the victim. Theevidence also established that Kieshawn Chaney was wearing a dark sweatshirt with whiteinsignia and a hat/mask at the time of his arrest and has a lighter skin tone than defendant andCooper, which together with his presence in the vehicle and guilty plea could reasonably lead tothe inference that he was the armed robber. However, the only evidence from which to infer thatdefendant was one of the other two perpetrators was his presence in the vehicle at the time it waspulled over and his "darker skin tone." With respect to defendant's presence in the vehicle, theevidence reflects that the vehicle's whereabouts prior to arriving at the liquor store at 8:41 p.m.were unknown, thereby leaving at least 11 minutes following the robbery and assault in whichdefendant could have entered the vehicle. Additionally, the evidence demonstrated that thefirearm alleged to have been used in the armed robbery was not in the vehicle at the time it wasstopped, the absence of which allows for the inference that it was disposed of between therobbery and the traffic stop or that someone left the vehicle with the firearm prior to the trafficstop. With respect to skin tone, the victim provided a description of skin tone for the first time attrial and his testimony revealed that the perpetrators' faces were partially covered, that it was darkoutside and that he looked at his assailants for only "[a] few seconds."[FN3] Although the victim testified that the men oneither side of the armed man were "taller" than the armed man, there was no evidenceestablishing the height of defendant or his codefendants.[FN4] Moreover, it is now well recognized that thereis a higher likelihood of inaccuracy where, as here, cross-race identification is involved (see People v Boone, 30 NY3d 521,528-529 [2017]; CJI2d[NY] Identification—One Witness). In all, upon review of theevidence, we find that the People failed to prove, beyond a reasonable doubt, defendant's identityas one of the perpetrators of the robbery and assault. As such, we find that defendant'sconvictions for robbery [*5]in the second degree, assault in thesecond degree and grand larceny in the fourth degree, as charged in counts 1 through 5 of theindictment, must be dismissed as unsupported by legally sufficient evidence and against theweight of the evidence.
The People's proof was also lacking on the element of physical injury, as required fordefendant's conviction for robbery in the second degree under count 1 of the indictment(see Penal Law § 160.10 [2]) and his conviction of assault in the seconddegree under count 4 of the indictment (see Penal Law § 120.05 [6]). PenalLaw § 10.00 (9) defines "[p]hysical injury" as "impairment of physical condition orsubstantial pain." Here, the evidence regarding the victim's injuries primarily consisted of thevictim's testimony that he had been struck in the head by his assailants and that he had "a smallcut . . . up near the top of [his] head," which "was bleeding a lot." Although thePeople introduced photographs taken of the cut before it was cleaned and tended to, the evidencedid not reveal the size and depth of the cut. Nor did the victim testify to experiencing pain or anyother symptoms resulting from the cut or the blows to his head. Further, there was no indicationthat the victim sought medical care following the incident. Given the paucity of proof regardingthe victim's injuries, we agree with defendant that the evidence fails to establish that the victimsuffered a physical injury within the meaning of Penal Law § 10.00 (9) so as tosupport the convictions under counts 1 and 4 of the indictment (see People v Jimenez, 55NY2d 895, 896 [1982]; People v McDowell, 28 NY2d 373, 375 [1971]; cf. Matter ofShawnell UU., 240 AD2d 947, 948 [1997]; compare People v Guidice, 83 NY2d630, 636 [1994]; People v Hogencamp, 300 AD2d 734, 735 [2002]).
We likewise find that defendant's convictions for criminal possession of stolen property inthe fourth degree, as charged in counts 6 through 9 of the indictment, are not supported by legallysufficient evidence and are against the weight of the evidence. To secure convictions on the fourcounts of criminal possession of stolen property in the fourth degree charged in the indictment,based upon the presence of three credit cards and a debit card in the stolen wallet, the People hadto prove that defendant knowingly possessed the stolen credit and debit cards "with intent tobenefit himself or a person other than an owner thereof" (Penal Law § 165.45 [2]).Pursuant to Penal Law § 10.00 (8), " '[p]ossess' means to have physicalpossession or otherwise to exercise dominion or control over tangible property." "A person whoknowingly possesses stolen property is presumed to possess it with intent to benefit himself or aperson other than [the] owner" and "[a] person who possesses two or more stolen credit cards[or] debit cards . . . is presumed to know that such . . . cards werestolen" (Penal Law § 165.55 [1], [3]). In cases of constructive possession, such asthis [*6]one, the defendant's knowing possession of stolenproperty may be proved circumstantially through the conduct of the defendant (see People vTraynham, 85 AD2d 748, 749 [1981]; People v Hadley, 67 AD2d 259, 262[1979]).
The evidence established that the stolen wallet and cell phone were ultimately located in theback seat of the vehicle, where defendant and Cooper were seated. However, there wasconflicting and unsubstantiated evidence as to where exactly the wallet was found in the backseat. A detective involved in the traffic stop testified that, once the occupants were cleared fromthe vehicle, he observed a wallet "open on the back seat," but that, because it was "a dark street,"he had "trouble seeing whose identity" was on the exposed driver's license.[FN5] The detective testified that,without first taking a picture of its location and without wearing gloves, he picked up the walletand observed that the driver's license belonged to the victim, a white male. He stated that hethereafter "placed [the wallet] in the same location that [he] grabbed it from." However, the dashcam video recording of the traffic stop refutes the detective's testimony and instead depicts thedetective toss the wallet back inside the vehicle after examining it. The detective sergeant thatexecuted a search of the vehicle first testified that "[t]he wallet was found in the middle of therear seat," but later stated that the wallet, as depicted in photographic evidence, was found on the"rear driver's [side] seat," where Cooper was seated. The detective sergeant testified that the cellphone was found underneath the floor mat below the rear driver side seat.
In our view, the foregoing circumstantial evidence falls short of proving, beyond a reasonabledoubt, that defendant constructively possessed the wallet and the credit and debit cards containedtherein or that any such possession was knowing. Although the testimony demonstrated that thewallet was found somewhere in the back seat, there was no other evidence connecting defendantto the stolen property or demonstrating his awareness of its presence inside the vehicle. Asdiscussed, the victim asserted that there were three black males involved in the robbery andassault and there were four black males in the vehicle when it was stopped some 30 to 40minutes afterward, leaving open the possibility that one of the passengers entered the vehicleafter the robbery and assault (compare People v Rivera, 82 NY2d 695, 696 [1993]; People v Santiago, 174 AD3d 134,138-139 [2019], lv denied 34 NY3d 954 [2019]; People v Traynham, 85 AD2d at749). There was no indication that defendant owned the vehicle and the evidence did not placethe stolen property in the location where defendant was seated—the rear passenger sideseat. The People did not present any DNA or fingerprint evidence from the wallet or cell phone.Nor did they present proof of any statements or conduct on the part of defendant that could leadto [*7]the conclusion that defendant knowingly possessed thestolen property (compare People v Santiago, 174 AD3d at 138-139; People vDennis, 88 AD2d 963, 963 [1982]; People v Hadley, 67 AD2d at 262). Finally, withregard to the knowledge element, although the evidence demonstrated that the wallet was foundopen with the victim's driver's license exposed, the testimony also demonstrated that it was darkand that the wallet may have been situated beneath Cooper before he exited the vehicle. Thus,upon consideration of the foregoing, we find that the evidence was insufficient to establish thatdefendant constructively possessed the victim's stolen credit and debit cards and that any suchpossession was knowing. We therefore find defendant's convictions for criminal possession ofstolen property in the fourth degree to be unsupported by legally sufficient evidence and againstthe weight of the evidence.
In light of our determination, we reverse the judgment of conviction and dismiss theindictment against defendant. Thus, defendant's remaining contentions have been renderedacademic.
Garry, P.J., Egan Jr., Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that the judgmentis reversed, on the law and the facts, and indictment dismissed.
Footnote 1:Defendant failed to preserve thisspecific argument, as he did not raise it in his trial motion for dismissal. Nevertheless, whenengaging in a weight of the evidence analysis, this Court necessarily determines whether eachelement of the charged crimes was proven beyond a reasonable doubt (see People v McMillan, 185 AD3d1208, 1209 [2020], lv denied 35 NY3d 1114 [2020]).
Footnote 2:The indictment alleges that therobbery and assault occurred at approximately 8:20 p.m.
Footnote 3:The victim did not testify as tothe lighting conditions of the roadway on which he encountered the perpetrators, and the Peopledid not introduce any evidence revealing such conditions.
Footnote 4:The only evidence regardingheight was the victim's testimony that he stands 5 feet, 5 inches tall.
Footnote 5:The detective elaborated that "itwas very hard to see what was on that ID inside a dark vehicle."