People v. Nicholas

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered December 7, 2011, upon a verdict convicting defendant of the crimes of conspiracy in the second degree, intimidating a victim or witness in the first degree, tampering with a witness in the first degree and criminal facilitation in the second degree.

In January 2010, the victim testified before an Ulster County grand jury regarding a shooting that he had witnessed involving codefendant Jarrin Rankin, a gang member. Following Rankin’s arrest, defendant—a self-admitted gang member—and other gang members and associates close to Rankin began to search for potential witnesses. At Rankin’s February 2010 arraignment, he discovered that the victim was going to testify against him. A week later, defendant called codefendant Amanda Miller asking to speak with Rankin’s brother, codefendant Trevor Mattis, and ostensibly indicated to Mattis that the victim was at a deli in the City of Kingston, Ulster County. Miller then drove Mattis and codefendants Gary Griffin and Dametria Kelley to the deli. Upon arrival, Griffin provided Mattis with a gun, and the duo met defendant and the victim in front of the deli. Mattis and the victim then walked away from the deli; defendant and Griffin went to Miller’s vehicle. Shortly thereafter, Mattis fatally shot the victim, returned to Miller’s vehicle and fled the scene. Defendant, Mattis, Rankin, Miller, Griffin, Kelley and an

On the evening of February 9, 2010, Miller was at Griffin’s home when defendant called and spoke to Mattis. After the call ended, she drove Griffin, Mattis and Kelley to the deli. Upon arrival, she observed defendant and the victim standing in the doorway of the deli. Mattis exited the vehicle, at which point Griffin “slid [a] gun out” to him through the right rear window. Surveillance video from the deli captured defendant conversing with the victim prior to the arrival of Mattis and Griffin. The video also captured the victim and Mattis walking away from the deli as defendant and Griffin returned to Miller’s vehicle. When defendant entered the rear of the vehicle, he “slid over into the middle” seat. Upon Griffin’s request, Miller made a U-turn and parked a few car lengths from Mattis and the victim, at which point she heard two gun shots and then observed Mattis running to her vehicle and defendant opening the rear door for Mattis to enter. The proof showed that the victim was shot twice, including a fatal shot to the back of the head. Based on the foregoing evidence, we conclude that the People established a prima facie case of conspiracy through the nonhearsay testimony of other witnesses and participants, thus permitting the People to introduce the statements of defendant’s coconspirators (see People v Caban, 5 NY3d at 148 ; People v Cancer, 16 AD3d at 839 ; compare People v Conklin, 139 AD2d 156 , 162 [1988], lv denied 72 NY2d 1044 [1988]).

Defendant’s challenges to the legal sufficiency of the evidence supporting his convictions for tampering with a witness in the first degree and criminal facilitation in the second degree are unpreserved for our review; although he moved for a trial order of dismissal, he failed to identify any deficiency in the People’s proof as to those charges (see People v Hawkins, 11 NY3d 484 , 492 [2008]; People v Gray, 86 NY2d 10 , 19 [1995]; People v Greenfield, 112 AD3d 1226 , 1226 [2013]). In any event, were we to consider these challenges, we would find the evidence legally sufficient to lead a rational juror to conclude that all the essential elements of each crime were proved beyond a reasonable doubt (see Penal Law §§ 115.05, 215.13 [2]; People v Danielson, 9 NY3d 342 , 349 [2007]).

As to defendant’s challenge to the legal sufficiency of his conviction of conspiracy in the second degree, the People were required to prove that defendant entered into an agreement with his coconspirators to murder the victim and that, in furtherance of the conspiracy, Mattis killed the victim (see Penal Law §§ 105.15, 105.20; People v Arroyo, 93 NY2d 990 , 991

The People adduced further proof that, although Miller did not overhear the telephone conversation between defendant and Mattis on the evening of the incident, after Mattis ended the phone call, he instructed Miller to “drive to [the] Cedar Street store ASAP” Miller testified that she, Mattis and Kelley went out to her vehicle and, when Griffin entered the vehicle, he stated that he “brought the hammer,” i.e., the gun. Although Miller and Kelley each testified that no one had ever previously mentioned shooting or killing the victim, viewing the proof in the light most favorable to the People (see People v Kancharla, 23 NY3d 294 , 302-303 [2014]; People v Reed, 22 NY3d 530 , 534 [2014]), we find that there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of conspiracy in the second degree (see People v Booker, 53 AD3d 697 , 703 [2008], lv denied 11 NY3d 853 [2008]; People v Ballard, 38 AD3d 1001 , 1003 [2007], lv denied 9 NY3d 840 [2007]) and intimidating a victim or witness

Defendant further contends that the police lacked probable cause to arrest him and that he was subject to an illegal warrantless arrest in his home. A warrantless entry into an individual’s home for the purposes of making an arrest is “ ‘presumptively unreasonable’ ” (People v Molnar, 98 NY2d 328 , 331 [2002], quoting Payton v New York, 445 US at 586 ; accord, People v McBride, 14 NY3d 440 , 445 [2010], cert denied 562 US —, 131 S Ct 327 [2010]); absent exigent circumstances or consent, the police are prohibited from entering an individual’s home for such purpose (see People v Levan, 62 NY2d 139 , 142 [1984]; People v Daly, 180 AD2d 872 , 873 [1992], lv denied 79 NY2d 1048 [1992]). However, it is also well settled that a third party with ostensible authority may grant consent to the entry (see People v Read, 74 AD3d 1245 , 1246 [2010]; People v Faulkner, 36 AD3d 1071 , 1072 [2007]; People v Daly, 180 AD2d at 874 ). Evidence at the suppression hearing established that, prior to defendant’s arrest, Mattis had confessed to killing the victim, the police had identified defendant as one of the individuals who was with the victim and Mattis just prior to the shooting, and Miller had informed the police about the circumstances precipitating the victim’s death. This evidence amply supports County Court’s conclusion that the police had probable cause to arrest defendant (see generally People v Maldonado, 86 NY2d 631 , 635 [1995]; People v Stroman, 106 AD3d 1268 , 1269 [2013], lv denied 21 NY3d 1046 [2013]). After gathering this information, the police went to locate defendant at an apartment where a codefendant had told them defendant could be found. Robert Henry, a detective with the Kingston Police Department, testified that, upon receiving no response from that apartment, he knocked on the door of the adjoining apartment. Tenant Kellyann Sanchez opened the door. Henry identified himself and the others as police officers, and stated that they were looking for defendant. Sanchez told them that defendant was upstairs sleeping. Henry testified that he then asked to speak with him. She responded by taking a step back, raising her hands in the air with palms facing forward, stating “do whatever you need to do” and stepping away from the front door, thus allowing the officers to enter. Sanchez testified at the suppression hearing that she did not provide consent for the police to enter; County Court found that Sanchez’s account was not credible and, instead, credited Henry’s version of the events.