People v. Callicut

• Decision Date: 13 December 2012
• Citation: 956 N.Y.S.2d 607,101 A.D.3d 1256,2012 N.Y. Slip Op. 08578
• Parties: The PEOPLE of the State of New York, Respondent, v. Devon CALLICUT, Also Known as Cut, Appellant.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1256

956 N.Y.S.2d 607

2012 N.Y. Slip Op. 08578

The PEOPLE of the State of New York, Respondent,

v.Devon CALLICUT, Also Known as Cut, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 13, 2012.

Paul J. Connolly, Delmar, for appellant.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, KAVANAGH, STEIN and EGAN JR., JJ.

PETERS, P.J.

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered February 3, 2011 in Albany County, upon a verdict convicting defendant of the crimes of murder in the first degree, robbery in the first degree, attempted robbery in the first degree and criminal possession of a weapon in the second degree.

Defendant was indicted for numerous crimes stemming from a series of incidents on the evening of October 20, 2008 in the City of Albany during which he attempted to rob and then fatally shot Richard Bailey and, shortly thereafter, effected a nearby robbery on another victim, Desmond Knauth. Prior to trial, Supreme Court granted defendant's motion to suppress certain oral and written statements he made to police on the ground that they were obtained in violation of his right to counsel. Upon appeal by the People, we affirmed that determination (85 A.D.3d 1326, 924 N.Y.S.2d 675 [2011],lvs. denied18 N.Y.3d 992, 993, 945 N.Y.S.2d 647, 648, 968 N.E.2d 1003, 1004 [2012] ).

After a jury trial, defendant was convicted of murder in the first degree, robbery in the first degree, attempted robbery in the first degree and criminal possession of a weapon in the second degree. He was sentenced to life imprisonment without the possibility of parole for his conviction of murder in the first degree, to run concurrently with two 15–year prison terms for his convictions of attempted robbery in the first degree and criminal possession of a weapon in the second degree. For his conviction of robbery in the first degree, defendant was sentenced to a consecutive prison term of 25 years with five years of postrelease supervision. He now appeals.

Defendant claims that portions of two letters he allegedly wrote to friends from prison should have been redacted as the fruit of a violation of his indelible right to counsel. In the letters, written just two days after he was questioned by police in violation of his right to counsel, defendant recounted portions of his earlier interview and admitted to having shot Bailey. While defendant contends that these admissions constitute “fruit of the poisonous tree” because, had the police not conducted their illegal interview of him, he would not have recited the substance of that interview in his subsequent letters, we disagree.

Evidence is not fruit of the poisonous tree simply because it would not have come to light “but for” the illegal police conduct ( see Hudson v. Michigan, 547 U.S. 586, 592, 126 S.Ct. 2159, 165 L.Ed.2d 56 [2006];Segura v. United States, 468 U.S. 796, 815, 104 S.Ct. 3380, 82 L.Ed.2d 599 [1984];Wong Sun v. United States, 371 U.S. 471, 487–488, 83 S.Ct. 407, 9 L.Ed.2d 441 [1963] ). “[R]ather, the dispositive inquiry is whether the challenged evidence is come at by the exploitation of that illegality so as to make it the product of that illegality” ( People v. Richardson, 9 A.D.3d 783, 789, 781 N.Y.S.2d 381 [2004],lv. denied3 N.Y.3d 680, 784 N.Y.S.2d 18, 817 N.E.2d 836 [2004];see Wong Sun v. United States, 371 U.S. at 488, 83 S.Ct. 407;People v. Arnau, 58 N.Y.2d 27, 32, 457 N.Y.S.2d 763, 444 N.E.2d 13 [1982] ). Here, police neither directed, encouraged nor enticed defendant to write the letters. Rather, they were unsolicited, spontaneous admissions to his friends made at a time when he was free of any coercive effects that may have induced his earlier statements. Thus, Supreme Court properly determined that exclusion was not warranted ( see People v. Talamo, 55 A.D.2d 506, 508, 391 N.Y.S.2d 474 [1977];compare People v. Grimaldi, 52 N.Y.2d 611, 617, 439 N.Y.S.2d 833, 422 N.E.2d 493 [1981];People v. Moss, 179 A.D.2d 271, 275, 583 N.Y.S.2d 699 [1992],lv. dismissed80 N.Y.2d 932, 589 N.Y.S.2d 859, 603 N.E.2d 964 [1992] ).

Defendant next contends that his convictions for murder in the first degree, attempted robbery in the first degree and criminal possession of a weapon in the second degree are not supported by legally sufficient evidence and are against the weight of the evidence. Specifically, he claims that the People failed to establish his identity as the shooter or that, in firing the fatal shot, he possessed the requisite intent to cause Bailey's death. To convict defendant of the crime of murder in the first degree, the People were required to prove that, “[w]ith [the] intent to cause the death of another person, [defendant] cause[d] the death of such person [while] in the course of committing or attempting to commit and in furtherance of robbery” (Penal Law § 125.27[1][a][vii] ).

The trial testimony established that on the evening of October 20, 2008, upon defendant's suggestion that they “get some free money,” defendant, King Modest and Ricardo Caldwell left Caldwell's home, located just a few blocks away from the scene of the instant crimes, on bicycles. Modest and Caldwell explained that, after an unsuccessful attempt to rob an individual on Northern Boulevard,¹ the three continued on towards Madison Avenue, at which point they spotted Bailey near South Lake Avenue and made the decision to rob him. Defendant and Caldwell took off towards Bailey, while Modest remained at the corner. Caldwell recounted that defendant reached Bailey first and, upon confronting him, Bailey started running, at which time Caldwell turned his bicycle around and rode in the opposite direction. Just seconds later, he heard a gunshot. Caldwell, Modest and a friend of defendant's who took no part in the incident each testified that defendant later told them that he shot Bailey. Notably, defendant also admitted to having shot Bailey in the two letters that he wrote from jail. Furthermore, a woman who witnessed the immediate aftermath of the shooting explained that she saw a young person matching defendant's description crouched down near Bailey's body before fleeing the scene, and cell phone evidence placed defendant in the vicinity of the crime scene at the time of the murder.

As for the element of intent, it “may be inferred from a defendant's conduct and the surrounding circumstances” ( People v. Booker, 53 A.D.3d 697, 703, 862 N.Y.S.2d 139 [2008],lvs. denied11 N.Y.3d 853, 856, 872 N.Y.S.2d 76, 79, 900 N.E.2d 559, 562 [2011];see People v. Hatchcock, 96 A.D.3d 1082, 1084, 945 N.Y.S.2d 796 [2012],lv. denied19 N.Y.3d 997, 951 N.Y.S.2d 473, 975 N.E.2d 919 [2012] ), as well as “from the act itself” ( People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094 [1977] ). Here, the doctor who performed the autopsy on Bailey explained that the gun was “very close” to Bailey's head when the bullet was fired, and was “possibly touching it.” “[E]vidence that a person ‘fired a shot at close range into [another's] head [is] sufficient to support the inference that [the person] intended to kill the victim’ ” ( People v. Holmes, 260 A.D.2d 942, 943, 690 N.Y.S.2d 292 [1999],lv. denied93 N.Y.2d 1020, 697 N.Y.S.2d 578, 719 N.E.2d 939 [1999], quoting People v. Lawrence, 186 A.D.2d 1016, 1017, 588 N.Y.S.2d 471 [1992],lv. denied81 N.Y.2d 790, 594 N.Y.S.2d 737, 610 N.E.2d 410 [1993];see People v. Bryant, 36 A.D.3d 517, 518, 828 N.Y.S.2d 360 [2007],lv. denied8 N.Y.3d 944, 836 N.Y.S.2d 554, 868 N.E.2d 237 [2007];People v. Lewis, 277 A.D.2d 603, 606, 714 N.Y.S.2d 830 [2000],lv. denied95 N.Y.2d 966, 722 N.Y.S.2d 483, 745 N.E.2d 403 [2000] ). Viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983];People v. Thomas, 93 A.D.3d 1019, 1028, 941 N.Y.S.2d 722 [2012],lv. granted19 N.Y.3d 1105, 955 N.Y.S.2d 561, 979 N.E.2d 822 [Oct. 23, 2012] ), we find that it was legally sufficient to sustain the jury's guilty verdict on the murder, attempted robbery and weapon possession counts.

Likewise, upon the exercise of our factual review power ( see People v. Romero, 7 N.Y.3d 633, 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006];People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ), we reject defendant's claim that the verdict on these counts is against the weight of the evidence. The fact that Modest and Caldwell were testifying pursuant to cooperation agreements in which they received leniency was fully developed at trial and highlighted to the jury, and did not render their testimony unworthy of belief as a matter of law ( see People v. Moyer, 75 A.D.3d 1004, 1006, 906 N.Y.S.2d 175 [2010];People v. Vargas, 60 A.D.3d 1236, 1238, 875 N.Y.S.2d 625 [2009],lv. denied13 N.Y.3d 750, 886 N.Y.S.2d 104, 914 N.E.2d 1022 [2009];People v. Wright, 22 A.D.3d 873, 875–876, 802 N.Y.S.2d 545 [2005],lvs. denied6 N.Y.3d 755, 761, 810 N.Y.S.2d 423, 429, 843 N.E.2d 1163, 1169 [2005] ). While certain witnesses testified that defendant described the shooting as an accident, and there was no DNA or fingerprint evidence linking defendant to the letters in which he admitted to having shot Bailey, this created credibility issues for the jury to resolve. Evaluating the evidence in a neutral light, weighing the probative force of the conflicting testimony and considering the relative strength of the inferences to be drawn therefrom, while giving due deference to the jury's credibility determinations ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), we conclude that the jury gave the evidence the weight it should be accorded.

Defendant's challenge to the sufficiency and weight of the evidence supporting his conviction of robbery in the first degree is similarly without...