| People v Harris |
| 2022 NY Slip Op 01484 [203 AD3d 1320] |
| March 10, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Tamale Harris, Also Known as MAX and BAGS,Appellant. |
Paul J. Connolly, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Clark, J. Appeal from a judgment of the Supreme Court (McDonough, J.), rendered April 26,2019 in Albany County, upon a verdict convicting defendant of the crimes of manslaughter in thesecond degree, conspiracy in the fifth degree and concealment of a human corpse.
On March 13, 2018, defendant rented a motel room where he, the victim and Jodi Noisseauspent the evening drinking alcohol and taking drugs. When it was time to check out the followingmorning, defendant and Noisseau were unable to wake the victim, and the two decided to carrythe victim to defendant's car and transport her to Noisseau's apartment, where Noisseau wouldstay with the victim as she "sle[pt] it off." The victim died in that apartment, and her body wasdisposed of in the snow on the side of a residential street in the City of Albany. Defendant andNoisseau were subsequently arrested and charged with manslaughter in the second degree,tampering with physical evidence, conspiracy in the fifth degree and concealment of a humancorpse. Noisseau pleaded guilty, and defendant proceeded to trial. A jury ultimately founddefendant guilty on the manslaughter, concealment and conspiracy counts, and he was sentenced,as a second felony offender, to an aggregate prison term of 9
Defendant challenges his convictions as unsupported by legally sufficient evidence and asagainst the weight of the evidence. Only defendant's legal sufficiency arguments regarding hismanslaughter conviction were adequately preserved for our review,[FN1] and, as to that conviction, he argues that thePeople failed to prove his awareness that the victim was overdosing and that his conduct causedthe victim's death. Nevertheless, as part of our weight of the evidence review, we necessarilyassess whether each element of all three offenses, as charged in the indictment, was provenbeyond a reasonable doubt (see People vSerrano, 200 AD3d 1340, 1341-1342 [2021]; People v Kabia, 190 AD3d 1105, 1106 [2021]).
"When assessing the legal sufficiency of a jury verdict, we view the facts in the light mostfavorable to the People and examine whether 'there is a valid line of reasoning and permissibleinferences from which a rational jury could have found the elements of the crime proved beyonda reasonable doubt' " (People vLendof-Gonzalez, 36 NY3d 87, 91-92 [2020], quoting People v Danielson, 9 NY3d 342,349 [2007]). When assessing whether a verdict is supported by the weight of the evidence, wemust first determine whether, "based on all the credible evidence[,] a different finding would nothave been unreasonable," and, if it would have been reasonable for the jury to reach a differentconclusion, then we must "weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony" to determinewhether "the [jury] has failed to give the evidence the weight it should be accorded" (People vBleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and citation omitted]; see People v Romero, 7 NY3d633, 643-644 [2006]).
As relevant here, "[a] person is guilty of manslaughter in the second degree when. . . [h]e [or she] recklessly causes the death of another person" (Penal Law§ 125.15 [1]). For purposes of that offense, a person acts "[r]ecklessly" when he orshe "is aware of and consciously disregards a substantial and unjustifiable risk" that death willoccur, and "[t]he risk must be of such nature and degree that disregard thereof constitutes a grossdeviation from the standard of conduct that a reasonable person would observe in the situation"(Penal Law § 15.05 [3]). The defendant must be shown to have engaged "in someblameworthy conduct contributing to that risk" (People v Asaro, 21 NY3d 677, 684 [2013]; see People v Gaworecki, 37 NY3d225, 230-231 [2021]; People vAcevedo, 187 AD3d 1030, 1032 [2020], lv denied 36 NY3d 1117 [2021]), andthat "conduct must be the kind of seriously blameworthy carelessness whose seriousness wouldbe apparent to anyone who shares the community's general sense of right and wrong" (People v Li, 34 NY3d 357, 364[2019] [internal quotation marks and citation omitted]; see People v Lavalley, 158 AD3d 993, 994 [2018]; People v Crosby, 151 AD3d 1184,1188 [2017]). "Although the awareness and corresponding disregard of [the] risk indeed ismeasured from the defendant's perspective, 'objective evidence of the surrounding circumstancesmay be weighed in making [that] factual determination' " (People v Briskin, 125 AD3d 1113,1119 [2015], lv denied 25 NY3d 1069 [2015], quoting People v Licitra, 47 NY2d554, 559 [1979]; see People vMarin, 164 AD3d 916, 918 [2018]).
As to defendant's other convictions, as limited by the People's indictment, "[a] person isguilty of concealment of a human corpse when, having a reasonable expectation that a humancorpse . . . will be . . . used as physical evidence in . . . anexamination by law enforcement personnel as part of a criminal investigation[,] such person,alone or in concert with another, . . . alters . . . such corpse. . . with the intent to prevent its . . . use" (Penal Law§ 195.02). Lastly, "[a] person is guilty of conspiracy in the fifth degree when, withintent that conduct constituting . . . a felony be performed"—here,concealment of a human corpse—"he [or she] agrees with one or more persons to engagein or cause the performance of such conduct" (Penal Law § 105.05 [1]).
Noisseau testified on behalf of the People at trial, pursuant to the terms of her pleaagreement. She met defendant about a week prior to the subject incident, when she purchasedcrack from him. She met the victim for the first time on March 13, 2018, when the three were ontheir way to the motel. Noisseau had already smoked crack before she arrived, all three consumedalcohol once at the motel and, according to Noisseau, defendant also put "[l]ittle crystals," whichshe believed to be "[m]olly" or ecstasy, in their drinks. Defendant provided Noisseau with morecrack, which she smoked in the bathroom. Noisseau later observed the victim in the bathroomwith "four lines of heroin" on her cell phone. She declined the victim's offer to share in the heroinand exited the bathroom, claiming that she did not see the victim consume the heroin. Shetestified that defendant did not provide either woman with heroin that evening. Defendant andthe victim later had sex, and the victim spent time in the bathroom thereafter before going tosleep. Noisseau then had sex with defendant in exchange for the crack that he had previouslyprovided her. Noisseau also testified that there was a four-hour gap in her memory from thatevening.
The next morning, defendant and Noisseau could not wake the victim for the 11:00 a.m.check out, and defendant accordingly dressed her, carried her to his vehicle and, upon Noisseau'ssuggestion, transported her to Noisseau's apartment, where Noisseau would watch her. Duringthat process, housekeeping staff observed the victim, inquired as to her well-being and offered tocall the police, but defendant and Noisseau stated in return that she was "just drunk." At trial,however, Noisseau testified that she did not believe the victim to be just drunk and "could tellsomething was definitely wrong" at that time.
Surveillance video from the motel captured the victim being brought to the vehicle bydefendant. Her body appears lifeless, or "like a rag doll," as Noisseau described, and defendanthas repeated difficulty keeping her off the ground. A white substance may also be seen on thevictim's face. Noisseau testified that, every time that she had seen someone in the victim's state"nodd[ed] out," "[t]hey've come to." She also testified that she had never witnessed anoverdose.
Defendant then drove the women to Noisseau's apartment. He helped get the victim into theapartment, placed her on a bed, sold crack to Noisseau's roommate, Christopher Kondracki, andthen left. Noisseau testified that she and defendant did not discuss calling 911 or going to ahospital at any point prior to him leaving. Once at the apartment, Noisseau continued to check onthe victim every hour, while she admittedly continued to smoke crack. She testified that thevictim "seemed the same during that time," meaning "[u]nconscious." At one point, she heard thevictim gurgling. Kondracki, who was "in and out" of the apartment that day, was also under theimpression that the victim had "nodded out" and would "sleep [it] off," but he had also neverwitnessed an overdose. He heard the victim "snoring[,] and then her breathing changed [to]something like that of sleep apnea."
At about 4:00 p.m., Noisseau called defendant because she noticed the victim's "pulse wasweakening" and "felt [that] he should know." According to Noisseau, she told defendant on asubsequent call that she wanted to call an ambulance for the victim and he responded thatNoisseau should "let her rest." Instead of calling 911 herself, Noisseau called Floyd Highsmith,who she referred to as her drug dealer, and he came over not long thereafter.
At about 7:30 p.m., the victim's color changed, her lips turned purple and she vomited ablack substance. Noisseau called defendant and told him that the victim "was gone." Defendantinterpreted her statement to mean that the victim had left Noisseau's apartment, and Noisseauwas required to explain, "[N]o she's dead." Defendant arrived soon thereafter with a white malethat Noisseau did not know, later identified by defendant as "Jay," and Jay brought NARCAN, ornaloxone, with him, although it is not clear that the narcotic inhibitor was ever administered.According to Noisseau, defendant then smashed the victim's cell phone and stated that sheneeded to be cleaned with bleach because his DNA was on her. Kondracki and Jay carried thevictim to the bathroom, and Noisseau undressed her and washed her body with bleach.
Noisseau testified that defendant and Jay then left in defendant's car, and video evidenceshows that this was around 10:50 p.m. The two returned with a truck about 20 minutes lateraccording to the video. Evidence revealed that the truck was borrowed from Charles Wilke.Wilke testified that he was with "Big L" that evening, and Big L informed him that someonewanted to borrow the truck in return for crack. Wilke did not interact with the two men, onewhite and one black, that picked up the truck. When shown a picture of Valicia Rawlins, heconfirmed that she was Big L. A state record containing Rawlins' cell phone number wasadmitted into evidence, and defendant's telephone records, also admitted into evidence, revealmultiple calls between his number and Rawlins' number from around 10:40 p.m. on the night inquestion. Noisseau went on to testify that defendant and Jay put the victim in the truck and left.The victim's body was discovered at around 11:30 p.m. atop a snowbank on the side of the streetin a residential area. Various surveillance cameras captured the truck's trip from Noisseau'sapartment to the spot where the victim's body would ultimately be discovered. Emergencymedical services responded, at some point administered naloxone and the victim was officiallypronounced dead at around 1:30 a.m.
The pathologist who performed the autopsy on the victim was able to confirm that the victimdied from the combined toxicity of heroin, fentanyl and "N-ethyl-pentylone," a clandestine,consciousness-altering drug. She had naloxone and a breakdown product of cocaine, among otherdrugs, in her system as well, but there was no indication that the victim had taken molly orecstasy. The pathologist testified that signs of drug toxicity include that the individual cannot bewoken up, is making obstructed breathing sounds, such as snoring or gurgling, and has a reducedrespiration rate. Another sign is foaming from the nose and/or mouth. The pathologist testifiedthat the white discoloration seen on the victim's face in the motel surveillance video was foam, orits residue, as her lungs were full of the same. The pathologist also noted that any such residuewipes off the skin very easily. He explained that, at that point, the victim was essentially slowlydrowning and that "almost nothing" other than consciousness-altering drugs causes foaming fromthe nose or mouth.
Defendant elected to testify on his own behalf, and he denied providing either Noisseau orthe victim with any drugs on the night in question or observing either woman use any drugs.According to defendant, he wanted to bring the victim to her own residence, not Noisseau's, butnot anywhere that professional medical attention would be provided. He denied seeing any foamcoming from the victim's mouth and blamed a camera glitch for the appearance of white powderon her face. He stated that he believed the victim to be "having a hangover." According todefendant, he called Noisseau around 5:30 p.m., at which time he was left with the impressionthat the victim "was okay, . . . drinking water and . . . waking up." Hewas therefore confused by Noisseau's next call. He later arrived at the apartment with Jay and aNARCAN kit. According to defendant, he waited outside, wanting "no part of this," as Jayentered the apartment. When Jay reported that the victim was not breathing, defendant wentinside and saw the victim with "black stuff on her nose and . . . mouth" and knewthen that "something was wrong." He allegedly questioned Noisseau as to why she did not call911, but did not call 911 himself. He denied suggesting the use of bleach, breaking the victim'scell phone, knowing Rawlins, borrowing a truck or moving the victim's body. Instead, he assertedthat he visited one of Noisseau's neighbors and then later went to another friend's residencewhere they consumed drugs and played cards.
Turning to the legal sufficiency of defendant's manslaughter conviction, the People's theorycentered on defendant's knowledge and conduct at the time that he and Noisseau transported thevictim from the motel to Noisseau's apartment, where she was left without medical care forapproximately 12 hours. Viewing the evidence in the light most favorable to the People, theproof at trial showed that defendant had observed the victim consume alcohol and drugs at themotel, that she could not be awakened the following morning, that he carried, with considerabledifficulty, the victim's all-but-lifeless body out of the motel, that housekeeping staff believed helpwas needed upon observing the state that the victim was in and that the victim was foaming at thenose and/or mouth to some extent, presumably not long before she was moved, given that thefoam residue had not yet rubbed off her face. That evidence provided a valid line of reasoningand permissible inferences from which a rational jury could conclude that defendant was awareof a "substantial and unjustifiable risk" to the victim's life (Penal Law § 15.05 [3];see Penal Law § 125.15 [1]; CPL 60.22 [1]; see e.g. People v West, 166 AD3d1080, 1085-1086 [2018], lv denied 32 NY3d 1129 [2018]; People v Roth, 141 AD3d 1090,1091 [2016], lv denied 28 NY3d 936 [2016]; People v Peters, 126 AD3d 1029, 1031 [2015], lv denied 25NY3d 991 [2015]).
As to causation, "[s]ufficiently direct causation is established by proof of the following: (1)that [the] defendant's actions were an actual contributory cause of the death, in the sense that theyforged a link in the chain of causes which actually brought about the death; and (2) that the fatalresult was reasonably foreseeable" (People v Davis, 28 NY3d 294, 300 [2016] [internal quotationmarks, brackets and citations omitted]). Viewing the evidence in the light most favorable to thePeople, the proof showed that defendant represented to motel staff, who again believed thevictim was in need of help, that the victim was merely drunk or hungover in an attempt toassuage their concern and prevent them from calling the police. Defendant instead elected totransport the victim to Noisseau's apartment, "a location that made her less likely to obtainmedical assistance" (People v Erb,70 AD3d 1380, 1381 [2010], lv denied 14 NY3d 840 [2010]). Defendant knew thatthe only care the victim would receive at the apartment would be from Noisseau, who had herselfconsumed a significant quantity of drugs and alcohol the prior evening. It was also by no meansunexpected that Noisseau would continue to take drugs and/or drink alcohol once at herapartment, where defendant sold crack to her roommate, and that her self-professed ability tocare for a person in the victim's condition would be diminished. Based on the evidence citedabove concerning the victim's condition, the People also set forth prima facie proof that thevictim's death was reasonably related to the foregoing conduct and therefore foreseeable. "It isnot required that [her] death was the inevitable result or even the most likely result" ofdefendant's conduct (CJI2d[NY] Causation—Cause of Death), and the proof was legallysufficient to demonstrate that defendant's conduct "set in motion the events which [would]ultimately result in the victim's death" (People v Li, 34 NY3d at 369 [internal quotationmarks, brackets and citation omitted]).
The jury's verdict was also supported by the weight of the credible evidence. As to hismanslaughter conviction, in our view, another verdict would have been unreasonable. In attemptsto diminish his culpability, defendant cites an alleged lack of familiarity with overdoses and analleged lack of knowledge that the victim was using any drugs on the night in question, insistingthat, if anything, his conduct was merely criminally negligent (see generally People vGaworecki, 37 NY3d at 230-232). Irrespective of the specific substance that induced thevictim's state or who provided it, it is painfully apparent from the video evidence admitted at trialthat she required prompt medical attention upon leaving the motel. This is not a case where adefendant's awareness was limited to "the general knowledge of the injuriousness of drug-taking"(People v Cruciani, 36 NY2d 304, 305 [1975]). Defendant was aware of the nature of thegathering on the prior evening and then witnessed the victim's condition firsthand the followingmorning, and his failure at that point, and at multiple points thereafter, to seek out or acceptassistance in obtaining that help was a gross deviation from what a reasonable person would havedone in the circumstance. Indeed, any lack of experience or knowledge as alleged by defendantshould have only heightened his concern for the victim under the circumstances, and his allegedreliance on Noisseau's "expertise" does not negate the foregoing (see People v Peters, 126AD3d at 1031). There is therefore no basis upon which to disturb the manslaughter conviction(see Penal Law §§ 15.05 [3]; 125.15 [1]; CPL 60.22 [1]).
Another verdict would not have been unreasonable on the concealment and conspiracyconvictions given that a jury could have chosen to accept defendant's version of events as to whattranspired after the victim's death, but they did not. According deference to the jury's credibilitydeterminations, we find that these two convictions are also supported by the weight of theevidence (see Penal Law §§ 105.05 [1]; 195.02).[FN2]
Turning to the evidentiary errors alleged by defendant, we first find that Supreme Courtprovidently exercised its discretion in permitting the People to introduce evidence of defendant'sdrug sales to Kondracki and Wilke to complete the narrative of events (see People v Richardson, 162 AD3d1328, 1331 [2018], lv denied 32 NY3d 1128 [2018]; compare People v Wilkinson, 71 AD3d249, 255-256 [2010]). Additionally, defendant failed to request a Molineuxinstruction from the court with respect to Wilke, and his challenge to that end is thereforeunpreserved for our review (see Peoplev Abussalam, 196 AD3d 1000, 1008 [2021], lv denied 37 NY3d 1144 [2021]; People v Williams, 107 AD3d1516, 1516 [2013], lv denied 21 NY3d 1047 [2013]). We note that the jury wasprovided with a lengthy Molineux instruction at the close of proof with respect to theproper use of several other uncharged crimes.
Defendant's argument that he should have been permitted to testify as to Noisseau's exactwords during their phone calls in order to establish his state of mind is also unpreserved asdefendant never proffered a basis for the admissibility of that evidence upon the People'sobjections (see People v George, 67 NY2d 817, 818-819 [1986]; People v Pascuzzi, 173 AD3d1367, 1377 [2019], lv denied 34 NY3d 953 [2019]; People v Natal, 94 AD3d 619, 619[2012], lv denied 19 NY3d 976 [2012]). In any event, defendant was in fact able to testifyas to what Noisseau told him on their calls, and he was further able to explain his generalimpression of the victim's condition by the end of the alleged 5:30 p.m. call. We also observe thatSupreme Court did not formally strike any of defendant's objected-to remarks from the record orexpressly direct the jury to disregard same. Defendant's arguments concerning the admissibilityof Wilke's identification of Rawlins and the state record establishing Rawlins' cell phone numberare similarly unpreserved (see CPL 470.15).
Defendant's claim that he was deprived of his right to a fair trial due to prosecutorialmisconduct is also unpreserved as he failed to lodge objections to the remarks that he nowchallenges (see People v Lyons, 200AD3d 1222, 1226 [2021], lv denied 37 NY3d 1162 [2022]; People v Smith, 193 AD3d 1260,1266 [2021], lv denied 37 NY3d 968 [2021]; People v Johnson, 183 AD3d 77, 89 [2020], lv denied 35NY3d 993 [2020]). To the extent that this claim underlies the ineffective assistance of counselclaim that follows, we find that it is also meritless. Defendant is correct, and the People nowconcede, that, during defendant's cross-examination and to some extent the People's summation,the prosecutor failed to appreciate that certain communications between defendant andNoisseau—as reflected in the detailed, voluminous call logs admitted intoevidence—were text messages rather than phone calls. That said, communicationsbetween the two did occur at the times identified by the prosecutor, and defendant testified thathe had woken up from a nap to a slew of missed calls and texts from Noisseau such that anyinadvertent misrepresentation was not so misleading as to deprive defendant of his right to a fairtrial (see People v Lawrence, 141AD3d 828, 833-834 [2016], lv denied 28 NY3d 1073 [2016]; compare People v Wright, 25 NY3d769, 771, 780-784 [2015]; People vPowell, 165 AD3d 842, 843-844 [2018]; People v Cotton, 242 AD2d 638,638-639 [1997]). In addition, to the extent that a remark by the prosecutor suggested to the jurythat it was to determine whether defendant was proven guilty or proven not guilty, and thereforeimpermissibly shifted the burden of proof onto defendant (see generally People v Goldston, 126 AD3d 1175, 1180 [2015],lv denied 25 NY3d 1201 [2015]), the record reflects that the prosecutor reminded the jurythat the People alone carried the burden of proving defendant's guilt, and, more to the point, thatremark did not rise to the flagrant and pervasive level of misconduct that would warrant reversal(see People v Harris, 162 AD3d1240, 1244 [2018], lv denied 32 NY3d 937 [2018]; People v Ressy, 141 AD3d 839,842-843 [2016], lv denied 28 NY3d 1030 [2016]).
Defendant next contends that he was deprived of his right to the effective assistance ofcounsel—specifically, that counsel was ineffective for failing to preserve all of theaforementioned unpreserved arguments and failing to request missing witness charges as toRawlins and Highsmith and an accomplice testimony charge as to Kondracki. The first aspect ofhis claim is unavailing as the arguments cited to by defendant were ultimately lacking in meritsuch that timely objections would have had little or no chance of success (see People v Rose, 185 AD3d1228, 1232 [2020], lv denied 35 NY3d 1115 [2020]; People v Brown, 169 AD3d 1258,1260 [2019], lv denied 33 NY3d 1029 [2019]; People v Richardson, 162 AD3d 1328, 1332 [2018], lvdenied 32 NY3d 1128 [2018]). Similarly, defendant has not shown that either Rawlins orHighsmith were under the People's control, or that Highsmith would have offered anynoncumulative testimony so as to warrant the jury charges that he now seeks (see People v Smith, 33 NY3d 454,458-459 [2019]; People v Ferguson,193 AD3d 1253, 1259-1260 [2021], lv denied 37 NY3d 964 [2021]; People v Hamilton, 176 AD3d1505, 1509 [2019], lv denied 34 NY3d 1128 [2020]). Assuming without decidingthat Kondracki was an accomplice within the meaning of CPL 60.22 (see generally People v Sage, 23 NY3d16, 23-24 [2014]), there are a number of possible strategic reasons for declining to request acharge concerning such status (see e.g.People v Porter, 82 AD3d 1412, 1416 [2011], lv denied 16 NY3d 898 [2011]; People v Smith-Merced, 50 AD3d259, 259 [2008], lv denied 10 NY3d 939 [2008]; People v Leffler, 13 AD3d 164, 164-165 [2004], lv denied 4NY3d 800 [2005]). Upon a review of the record, we are satisfied that defendant receivedmeaningful representation.
We lastly reject defendant's argument that his aggregate sentence is harsh and excessive.Defendant received the maximum permissible terms for his convictions (see Penal Law§ 70.06 [3] [c], [e]; [4] [b]), and the consecutive manner in which the sentenceswere imposed was lawful (see Penal Law § 70.25). Supreme Courtconsidered defendant's extensive criminal history, his lack of remorse and the multiple victimimpact statements in fashioning its sentence, and we agree with the court that defendant's actionswere completely devoid of any human sympathy or concern. We discern no basis upon which todisturb the aggregate sentence.
Garry, P.J., Aarons and Colangelo, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:Defendant did challenge thelegal sufficiency of each offense in his motion for a trial order of dismissal and his renewedmotion thereafter, but he did not include the arguments he now raises with respect to hisconcealment and conspiracy convictions (see People v Serrano, 200 AD3d 1340, 1341 [2021]; People v Kabia, 190 AD3d 1105,1106 [2021]).
Footnote 2:Defendant failed to preserve hisargument that the jury rendered an inconsistent verdict in acquitting him on the tampering countbut convicting him on the concealment count, as he failed to lodge an appropriate objection tothat end before the jury was discharged (see People v Agudio, 194 AD3d 1270, 1275 [2021]; People v Coville, 73 AD3d 1232,1232-1233 [2010]).