People v. Fields

• Decision Date: 12 April 2018
• Docket Number: 107727
• Citation: 160 A.D.3d 1116,75 N.Y.S.3d 617
• Parties: The PEOPLE of the State of New York, Respondent, v. Nahkiem FIELDS, also known as Naz, Appellant.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 1116
75 N.Y.S.3d 617

The PEOPLE of the State of New York, Respondent,
v.
Nahkiem FIELDS, also known as Naz, Appellant.

107727

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

Calendar Date: February 15, 2018
Decided and Entered: April 12, 2018

75 N.Y.S.3d 619

Paul J. Connolly, Delmar, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Garry, P.J., Devine, Mulvey and Aarons, JJ.

MEMORANDUM AND ORDER

Devine, J.

Appeal from a judgment of the Supreme Court (Milano, J.), rendered June 2, 2015 in Schenectady County, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree (two counts), assault in the second degree and criminal possession of a weapon in the third degree.

In the overnight hours of April 29–30, 2014, the victim and his friend emerged from a convenience store in the City of Schenectady, Schenectady County to find a group of five people approaching them. One of the five accosted the victim and struck him in the head with the butt of a pistol, after which the group walked away. Some of the group were apprehended soon after the incident, and an investigation into their activities on the night in question led to defendant being identified as the assailant and charged in an indictment with various offenses. Pretrial motion practice occurred in County Court (Drago, J. and Loyola, J.), after which the indictment was transferred to Supreme Court for a pretrial conference and trial. Following that trial, a jury convicted defendant of criminal possession of a weapon in the second

75 N.Y.S.3d 620

degree (two counts), assault in the second degree and criminal possession of a weapon in the third degree. Supreme Court sentenced defendant, as a second felony offender, to an aggregate prison term of 12 years to be followed by postrelease supervision of five years. Defendant appeals, and we now affirm.

Defendant contends that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence in two respects. He first asserts that the testimony of two accomplices—who were part of the group that defendant was with and gave some detail as to his actions—was not corroborated as required by CPL 60.22(1). The statutory corroboration requirement will be satisfied with proof that "tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth" ( People v. Sage , 23 N.Y.3d 16, 27, 988 N.Y.S.2d 104, 11 N.E.3d 177 [2014] [internal quotation marks and citations omitted]; see People v. Furman , 152 A.D.3.d 870, 873, 59 N.Y.S.3d 165 [2017], lv denied 30 N.Y.3d 1060, 71 N.Y.S.3d 10, 94 N.E.3d 492 [2017] ). The corroborating proof does not need to demonstrate defendant's guilt; instead, "when ‘read with the accomplice's testimony, [the proof] makes it more likely that the defendant committed the offense, and thus tends to connect him to it’ " ( People v. Sage , 23 N.Y.3d at 27, 988 N.Y.S.2d 104, 11 N.E.3d 177, quoting People v. Reome , 15 N.Y.3d 188, 194, 906 N.Y.S.2d 788, 933 N.E.2d 186 [2010] ).

In that regard, the accomplices' accounts of defendant's attack were similar to those provided by the victim and his friend. The victim and his friend could not identify defendant as the assailant, but they described an attacker who resembled defendant and recalled distinctive characteristics of individuals with him that matched those given by the testifying accomplices. One accomplice testified that she placed the pistol used by defendant in her purse after the attack, which is where the police recovered it later that night. An examination of the pistol led to the recovery of genetic material from two males. Defendant was not definitively identified as one of those males, but was revealed to be 131,000 times more likely to be one than another, randomly selected African American. This nonaccomplice evidence sufficiently corroborated the accounts of the accomplices and, even if an acquittal on the counts for which defendant was convicted was possible, we defer to the jury's determination to credit the proof of defendant's guilt and find the verdict to be supported by the weight of the evidence (see People v. Garcia , 131 A.D.3d 732, 733–734, 14 N.Y.S.3d 809 [2015], lv denied 27 N.Y.3d 997, 38 N.Y.S.3d 107, 59 N.E.3d 1219 [2016] ; People v. Brown , 62 A.D.3d 1089, 1090–1091, 878 N.Y.S.2d 515 [2009], lvs denied 13 N.Y.3d 742, 886 N.Y.S.2d 96, 914 N.E.2d 1014 [2009] ).

Defendant further argues that the dearth of proof as to the physical injury sustained by the victim left the second-degree assault conviction unsupported by legally sufficient evidence and against the weight of the evidence (see Penal Law § 120.05[2] ). " ‘Physical injury’ means impairment of physical condition or substantial pain" ( Penal Law § 10.00[9] ), and whether it was inflicted is ordinarily a question of fact for the jury to resolve (see People v. Guidice , 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994] ). The victim testified that he was struck on the left side of the face and that, while he iced the area, he had bruising and swelling for about 10 days and was unable to sleep normally due to the pain. Other witnesses testified to seeing redness and bruising on the victim's face, and the owner of the

75 N.Y.S.3d 621

store outside of which the attack occurred stated that the victim was bleeding in its immediate aftermath. In our view, this proof was legally sufficient to determine that the victim suffered "more than slight or trivial pain" as a result of the attack, and the jury's determination to credit it was not against the weight of the evidence ( People v. Chiddick , 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ; see People v. Mullings , 105 A.D.3d 407, 408, 961 N.Y.S.2d 470 [2013], lv denied 21 N.Y.3d 945, 968 N.Y.S.2d 7, 990 N.E.2d 141 [2013] ; People v. Boyd , 97 A.D.3d 898, 898–899, 948 N.Y.S.2d 450 [2012], lv denied 20 N.Y.3d 1009, 960 N.Y.S.2d 352, 984 N.E.2d 327 [2013] ).¹

Defendant also contends that the People failed to demonstrate their entitlement to an order authorizing the taking of a buccal swab from him. Defendant had been indicted, which established probable cause to believe that he committed a crime, and DNA evidence recovered from the pistol gave a clear indication that material evidence could be expected to result from a comparison between that evidence and his own DNA. The issuance of the order was authorized under these circumstances, and County Court (Loyola, J.) did not err in issuing it (see CPL 240.40[2][b][v] ; People v. Vieweg , 155 A.D.3d 1305, 1308, 65 N.Y.S.3d 275 [2017], lv denied 30 N.Y.3d 1121, 77 N.Y.S.3d 346, 101 N.E.3d 987 [2018] ; People v. Roshia , 133 A.D.3d 1029, 1030, 19 N.Y.S.3d 373 [2015], affd 28 N.Y.3d 989, 41 N.Y.S.3d 208, 63 N.E.3d 1152 [2016] ).

As noted above, subsequent DNA analysis did not definitively tie defendant to the genetic material recovered from the pistol. The People accordingly sought to present proof of a re-analysis conducted with the TrueAllele Casework System (hereinafter TrueAllele), a computer program that subjects a DNA mixture to statistical modeling techniques to infer what DNA profiles contributed to the mixture and calculate the probability that DNA from a known individual contributed to it. Defendant argued that the TrueAllele evidence should be precluded or that the general acceptance of the technique in the scientific community should be assessed via a Frye hearing. Supreme Court denied the application due to the fact that an extensive Frye hearing had been conducted on the issue in another criminal case in the same county and that a determination, issued weeks before the trial in this matter, was rendered finding that the procedure was not novel and was generally accepted by the relevant scientific community ( People v. Wakefield , 47 Misc.3d 850, 9 N.Y.S.3d 540 [Sup. Ct., Schenectady County 2015] ). We acknowledge that the defendant in People v. Wakefield (supra) was convicted of various offenses and that he may well attack the propriety of the Frye determination upon his as-yet-unperfected appeal. Nevertheless, Supreme

75 N.Y.S.3d 622

Court's reliance upon the determination was not an abuse of discretion (see People v. LeGrand , 8 N.Y.3d 449, 457–458, 835 N.Y.S.2d 523, 867 N.E.2d 374 [2007] ; People v. Gonzalez , 155 A.D.3d 507, 508, 65 N.Y.S.3d 142 [2017], lv denied 30 N.Y.3d 1115, 77 N.Y.S.3d 340, 101 N.E.3d 981 [2018] ), although defendant may wish to revisit the issue should subsequent developments warrant it (see e.g. People v. Jones , 128 A.D.2d 405, 407, 512 N.Y.S.2d 691 [1987], affd 70 N.Y.2d 547, 523 N.Y.S.2d 53, 517 N.E.2d 865 [1987] ).

The results of the TrueAllele analysis were placed into evidence at trial via the testimony of Mark Perlin, the chief executive officer and chief scientific officer of the corporation that developed TrueAllele, as well as the author of the report quantifying the probability of defendant being a contributor to the DNA mixture recovered from the pistol. He is one of two individuals with access to the proprietary source code of TrueAllele,...