People v. Forbes

• Decision Date: 27 November 2013
• Citation: 2013 N.Y. Slip Op. 07879,975 N.Y.S.2d 490,111 A.D.3d 1154
• Parties: The PEOPLE of the State of New York, Respondent, v. Lukee P. FORBES, Appellant.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 1154

975 N.Y.S.2d 490

2013 N.Y. Slip Op. 07879

The PEOPLE of the State of New York, Respondent,

v.Lukee P. FORBES, Appellant.

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

Nov. 27, 2013.

Matthew C. Hug, Troy, for appellant.

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

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

EGAN JR., J.

Appeal from a judgment of the County Court of Albany County(Herrick, J.), rendered April 29, 2011, upon a verdict convicting defendant of the crimes of assault in the first degree and robbery in the first degree (two counts).

Late in the evening on June 13, 2010, defendant and his friends, Quayvon M. Young and Roscoe Ervin, who had been drinking alcohol and smoking marihuana, walked to a convenience store located near Albany Medical Center in the City of Albany so that Young could purchase cigarettes.When Young exited the store, he saw defendant and Ervin following the victim, who appeared to be intoxicated.Young observed defendant pick up and drop what he described as a “stick” but was, in reality, a tree branch roughly the diameter of the end of a baseball bat.According to Young, as Ervin and defendant continued to follow the victim, Ervin picked up the discarded tree branch and swung it “[l]ike he was going for a home[ ]run,” striking the victim in the head.¹The three rolled the now unconscious victim over, went through his pockets—with Young taking the victim's credit card and identification and defendant taking the victim's blue cell phone—and “left [him] for dead.”²The trio then started walking and eventually made their way to the apartment complex where Young's girlfriend resided.

When the victim failed to return home, his brother began sending him text messages inquiring as to his whereabouts.According to Young, defendant had the victim's cell phone and responded to the incoming messages—directing the victim's brother to their location.While searching for the victim during the early morning hours of June 14, 2010, the victim's brother encountered three young men, two of whom he subsequently identified as Young and Ervin, who told him that the victim was attending a party at a nearby apartment.Suspecting that something was not quite right, the victim's brother remained in his vehicle and eventually left the area and reported the victim as missing.The victim eventually regained consciousness and found his way to Albany Medical Center—where he presented with “significant head and facial injuries,” including multiple skull fractures and a brain contusion, as well as numerous cuts and bruises all over his body.

Later that day, defendant, Young and Ervin—among others—met in the general vicinity of Swinburne Park in the City of Albany and decided to go to Crossgates Mall in the Town of Guilderland, Albany County.Prior to boarding a bus to that location, the trio discarded the victim's blue cell phone and driver's license.³Upon arriving at the mall, defendant used the victim's credit card to successfully purchase a quantity of baseball hats.Following a failed transaction at a second store, defendant was apprehended at a bus station outside of the mall.

Young, Ervin and defendant thereafter were indicted and charged with assault in the first degree (two counts), robbery in the first degree (two counts) and robbery in the second degree.Young and Ervin pleaded guilty and agreed to testify against defendant.Following a jury trial, defendant was convicted on all counts; however, because defendant was only 15 years old at the time that the underlying crimes were committed, County Court dismissed the two non-juvenile offender counts of the indictment as legal nullities ( seePenal Law § 30.00[2];CPL 310.85[1], [2] ) and sentenced defendant upon the remaining counts to concurrent prison terms of 3 1/3 to 10 years.In so doing, County Court declined to accord defendant youthful offender status—instead recommending to the Division of Parole that defendant be held for the maximum time allowed by law.Defendant's motion to set aside the verdict was denied, and this appeal ensued.

Defendant primarily contends that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence and, further, that certain comments made by the prosecutor during the course of the People's summation deprived him of a fair trial.With respect to defendant's challenge to the underlying verdict,⁴ the crux of defendant's argument on this point is that the testimony offered by Young and Ervin was not sufficiently corroborated and, additionally, was so inconsistent as to be deemed unworthy of belief.We disagree.

“New York's accomplice corroboration rule minimally requires [some]‘corroborative evidence tending to connect the defendant with the commission’ of [the underlying crimes]”(People v. Matthews,101 A.D.3d 1363, 1365, 956 N.Y.S.2d 317[2012], lvs. denied20 N.Y.3d 1101, 965 N.Y.S.2d 797, 988 N.E.2d 535[2013], 20 N.Y.3d 1104, 965 N.Y.S.2d 801, 988 N.E.2d 539[2013]quotingCPL 60.22[1] ).Notably, “[i]ndependent evidence need not be offered to establish each element of the offense or even an element of the offense”(People v. Berry,78 A.D.3d 1226, 1227, 910 N.Y.S.2d 281[2010], lv. denied16 N.Y.3d 828, 921 N.Y.S.2d 192, 946 N.E.2d 180[2011][internal quotation marks and citationomitted];seePeople v. Matthews,101 A.D.3d at 1365, 956 N.Y.S.2d 317;People v. Rodriguez,52 A.D.3d 1047, 1048, 860 N.Y.S.2d 284[2008] ); rather, “[i]t is enough if [the corroborative evidence] tends to connect the defendant with the commission of the crime[s] in such a way as may reasonably satisfy the jury that the accomplice is telling the truth”(People v. Matthews,101 A.D.3d at 1365, 956 N.Y.S.2d 317[internal quotation marks and citation omitted];seePeople v. Reome,15 N.Y.3d 188, 192, 906 N.Y.S.2d 788[2010];People v. Pagan,87 A.D.3d 1181, 1182, 929 N.Y.S.2d 332[2011], lv. denied18 N.Y.3d 885, 939 N.Y.S.2d 755, 963 N.E.2d 132[2012] ).In this regard, “even [s]eemingly insignificant matters may harmonize with the accomplice's narrative so as to provide the necessary corroboration”(People v. Caban,5 N.Y.3d 143, 155, 800 N.Y.S.2d 70, 833 N.E.2d 213[2005][internal quotation marks and citation omitted] ).

Here, the accomplice testimony offered by Young and Ervin was corroborated by, among other things, (1)defendant's testimony placing him with Young and Ervin both immediately prior to and shortly after the attack, his admitted use of the victim's credit card to make a purchase at the mall and his testimony that he discarded the victim's cell phone—allegedly in Young's possession at the time—while en route to the bus stop on the morning following the assault; (2) the testimony of Young's girlfriend, who stated that she saw Young, Ervin and defendant together during the early morning hours of June 14, 2010, at which time defendant was in possession of a blue cell phone; (3) Hairston's testimony that, on the morning following the attack, defendant was in possession of a blue cell phone and was bragging about the robbery and “[running the victim's] pockets”; (4) the recovery of the tree branch used to strike the victim from the location described by Young and Ervin; and (5) the testimony detailing the recovery of the victim's license, as well as a portion of his blue cell phone, from the general locations where Young, Ervin and defendant each described the items as being discarded.Such proof, in our view, is more than sufficient “to satisfy the minimal corroboration requirement connecting defendant to these crimes and provid[es] a sound basis for the jury to credit the accomplice[s'] testimony”(People v. Matthews,101 A.D.3d at 1365–1366, 956 N.Y.S.2d 317).To the extent that defendant argues that certain of the People's witnesses had prior criminal histories, received advantageous plea bargains in exchange for testifying and/or testified in an inconsistent fashion, thereby rendering their testimony unworthy of belief, we need note only that all of “these issue were fully explored during cross-examination and ... credibility questions [are] within the jury's province to resolve”(People v. Sheppard,107 A.D.3d 1237, 1239, 967 N.Y.S.2d 498[2013][internal quotation marks and citations omitted] ).In light of this evidence, we are satisfied that the verdict is in accord with the weight of the evidence.

We now turn to defendant's argument regarding the People's summation.Summations afford counsel the opportunity to comment upon the evidence adduced at trial and to suggest to the jury whatever inferences and conclusions logically and reasonably may be drawn therefrom.It is, therefore, entirely permissible for counsel not only to highlight the proof favorable to his or her position but, further, to call to the jury's attention evidence that contradicts opposing counsel's theory of the case.In so doing, however, counsel may not become a witness in the case or vouch for the credibility of the witnesses who testified ( seePeople v. Spence,92 A.D.3d 905, 905, 938 N.Y.S.2d 622[2012];People v. Russell,307 A.D.2d 385, 386, 761 N.Y.S.2d 400[2003] ), nor may he or she comment upon matters not in evidence or otherwise engage in speculation ( seePeople v. Woodrow,91 A.D.3d 1188, 1190, 936 N.Y.S.2d 778[2012], lv. denied18 N.Y.3d 999, 945 N.Y.S.2d 654, 968 N.E.2d 1010[2012];People v. Paixao,23 A.D.3d 677, 678, 806 N.Y.S.2d 672[2005], lv. denied6 N.Y.3d 816, 812 N.Y.S.2d 456, 845 N.E.2d 1287[2006];People v. Washington,21 A.D.3d 253, 253, 799 N.Y.S.2d 217[2005], lv. denied5 N.Y.3d 834, 804 N.Y.S.2d 48, 837 N.E.2d 747[2005], cert. denied546 U.S. 1104, 126 S.Ct. 1047, 163 L.Ed.2d 878[2006] ).To our analysis, the prosecutor strayed far beyond those well-defined parameters here.

During the course of his summation, the prosecutor, among other things, repeatedly vouched for...