People v. Green

• Decision Date: 14 January 2021
• Docket Number: 109897,112012
• Parties: The PEOPLE of the State of New York, Respondent, v. Nagee GREEN, Appellant.
• Court: New York Supreme Court — Appellate Division

190 A.D.3d 1094

139 N.Y.S.3d 446

The PEOPLE of the State of New York, Respondent,

v.Nagee GREEN, Appellant.

109897

112012

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

Calendar Date: November 17, 2020

Decided and Entered: January 14, 2021

Paul J. Connolly, Delmar, for appellant.

Matthew Van Houten, District Attorney, Ithaca (Andrew J. Bonavia of counsel), for respondent.

Before: Egan Jr., J.P., Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeals (1) from a judgment of the County Court of Tompkins County (Rowley, J.), rendered November 6, 2017, upon verdicts convicting defendant of the crimes of assault in the second degree and murder in the second degree, and (2) by permission, from an order of said court, entered January 14, 2020, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In the early morning hours of August 28, 2016, a brawl erupted on the streets of the City of Ithaca, Tompkins County. Rahiem Williams and Anthony Nazaire were stabbed by a knife-wielding combatant during the fighting, and Nazaire succumbed to his injuries. An investigation pointed to defendant as the perpetrator, and he was charged in an indictment with various offenses. Defendant unsuccessfully moved to suppress statements he had made during a recorded interview with investigators, after which the matter proceeded to trial. The jury was unable to reach a verdict on the counts relating to the stabbing of Nazaire, prompting County Court to declare a mistrial on those counts and accept a partial verdict finding defendant guilty of assault in the second degree relating to the stabbing of Williams. The second trial on the counts relating to Nazaire ended with the jury finding defendant guilty of murder in the second degree. County Court sentenced defendant to 17 years to life in prison on the murder conviction and to a consecutive prison term of three years, followed by three years of postrelease supervision, on the assault conviction. Defendant thereafter moved to vacate the judgment of conviction on the ground of ineffective assistance of counsel. County Court denied that motion. Defendant appeals from the judgment of conviction and, by permission, from the denial of his CPL article 440 motion.

We affirm. The proof at the first trial reflected that the melee arose from a run-in between Williams and Nazaire, who knew each other and were walking together, and another group. The dispute drew in acquaintances of both groups who were in the area, and mayhem ensued when Williams was punched. Defendant knew the group that was arguing with Williams and Nazaire, and he was identified as an active participant in the brawl who had been staring Williams down before it began. The trial testimony and social media videos of the brawl reflected that defendant was screaming, "I kill out here" during the fighting, swung a knife at another combatant, then ran toward Williams and Nazaire. Williams testified that defendant had an encounter with Nazaire and then approached him, at which point Williams grabbed defendant by his backpack and they both fell to the ground. Lying on his right side underneath defendant, Williams tried to shoulder defendant off of him and called out to Nazaire for assistance. Nazaire came over, punched defendant twice in the shoulder or back, then collapsed and began bleeding out of his mouth as the result of a stab wound to his chest, prompting Williams to cry for help as defendant got up and left the scene. Williams realized later that he had also been stabbed multiple times in the back, apparently with a knife recovered nearby that had Williams' DNA on the blade and that one witness stated appeared to be the one held by defendant earlier. Defendant further made statements to investigators in which he acknowledged that both Williams and Nazaire were stabbed, perhaps unintentionally, as he tried to get away from them.

Viewing the foregoing proof in the light most favorable to the People, as is required in assessing the legal sufficiency of the evidence (see People v. Lendof–Gonzalez, 36 N.Y.3d 87, 139 N.Y.S.3d 84 163 N.E.3d 15 [2020] ), defendant brandished a knife in the melee with the stated intent to "kill," charged at Nazaire and then Williams, and stabbed Williams while they struggled on the ground. The intent of a defendant "may be inferred from the totality of the circumstances presented and the natural and probable consequences of his or her actions" and, contrary to defendant's contention, this proof was legally sufficient for the jury to find that he intentionally injured Williams by repeatedly stabbing him with the knife ( People v. Stover, 174 A.D.3d 1150, 1151, 105 N.Y.S.3d 194 [2019], lv denied 34 N.Y.3d 954, 110 N.Y.S.3d 632, 134 N.E.3d 631 [2019] ; see Penal Law § 120.05[2] ; People v. Soriano, 121 A.D.3d 1419, 1420–1421, 995 N.Y.S.2d 387 [2014] ; People v. Taylor, 118 A.D.3d 1044, 1045, 986 N.Y.S.2d 711 [2014], lv denied 23 N.Y.3d 1043, 993 N.Y.S.2d 257, 17 N.E.3d 512 [2014] ). Further, we defer to the jury's determination to credit that proof over defendant's suggestion that he merely held the knife while Williams repeatedly impaled himself upon it during their struggle, and our independent review leaves us satisfied that the assault conviction was not against the weight of the evidence (see People v. Townsend, 144 A.D.3d 1196, 1196–1197, 41 N.Y.S.3d 162 [2016], lv denied 28 N.Y.3d 1189, 52 N.Y.S.3d 715, 75 N.E.3d 107 [2017] ; People v. Gibson, 141 A.D.3d 1009, 1012, 35 N.Y.S.3d 806 [2016] ; People v. Taylor, 118 A.D.3d at 1046–1047, 986 N.Y.S.2d 711 ).

Next, we reject defendant's argument that the second trial was barred by double jeopardy. Although double jeopardy can come into play where a mistrial is granted over a defendant's objection, there is no such difficulty if "the defendant requests or consents to" one ( People v. Ellis, 182 A.D.3d 791, 792, 123 N.Y.S.3d 210 [2020], lv denied 35 N.Y.3d 1026, 126 N.Y.S.3d 34, 149 N.E.3d 872 [2020] ; see Matter of Suarez v. Byrne, 10 N.Y.3d 523, 532–534, 860 N.Y.S.2d 439, 890 N.E.2d 201 [2008] ; People v. Ferguson, 67 N.Y.2d 383, 388, 502 N.Y.S.2d 972, 494 N.E.2d 77 [1986] ). Defendant implicitly gave that consent after County Court proposed that it take a partial verdict and schedule a retrial on the counts relating to Nazaire for which the jury was unable to agree (see CPL 310.70[1][a] ; [2] ), at which point defense counsel agreed to a partial verdict and offered no objection to the plan for a retrial (see Matter of Gentil v. Margulis, 26 N.Y.3d 1027, 1028, 20 N.Y.S.3d 330, 41 N.E.3d 1145 [2015] ; Matter of Marte v. Berkman, 16 N.Y.3d 874, 875–876, 925 N.Y.S.2d 388, 949 N.E.2d 479 [2011] ; People v. Haggray, 164 A.D.3d 1522, 1523, 83 N.Y.S.3d 374 [2018], lv denied 32 N.Y.3d 1111, 91 N.Y.S.3d 363, 115 N.E.3d 635 [2018] ; Matter of Matthews v. Nicandri, 252 A.D.2d 657, 658, 675 N.Y.S.2d 178 [1998], appeal dismissed 92 N.Y.2d 945, 681 N.Y.S.2d 475, 704 N.E.2d 228 [1998] ). The fact that defense counsel gave that consent immediately after County Court denied his request for a jury charge that would have limited the factual scenarios under which the jury could find defendant guilty on the remaining counts did not, contrary to defendant's contention, call the voluntariness of the consent into question. Even assuming that County Court erred in declining to give the charge, such was simply one factor for defense counsel to consider in assessing how the defense had fared at the trial and whether a retrial would be in defendant's best interests (see United States v. Dinitz, 424 U.S. 600, 608, 96 S.Ct. 1075, 47 L.Ed.2d 267 [1976] ; People v. Ferguson, 67 N.Y.2d at 389–390, 502 N.Y.S.2d 972, 494 N.E.2d 77 ). Defendant accordingly waived any objection to the second trial on double jeopardy grounds, and we need not consider whether there would have been " ‘manifest necessity’ for the mistrial" absent that waiver ( People v. Ferguson, 67 N.Y.2d at 388, 502 N.Y.S.2d 972, 494 N.E.2d 77, quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 [1824] ).

We therefore turn to the second trial and the evidence presented at it.¹ At the outset, the People were properly permitted to present evidence that conformed to an amended summary of facts, functioning as their bill of particulars, in which they altered the sequence in which defendant allegedly stabbed Williams and Nazaire but "did not change or limit the [underlying] theory of prosecution" that defendant had intentionally stabbed both in a rapid sequence during the brawl ( People v. Medina, 233 A.D.2d 927, 927, 649 N.Y.S.2d 566 [1996], lv denied 89 N.Y.2d 926, 654 N.Y.S.2d 728, 677 N.E.2d 300 [1996] ; see CPL 200.95[8] ; People v. Moore, 274 A.D.2d 959, 959, 710 N.Y.S.2d 231 [2000], lv denied 95 N.Y.2d 868, 715 N.Y.S.2d 223, 738 N.E.2d 371 [2000] ).²

The evidence at the second trial was essentially identical to that presented at the first, but it is worth repeating that defendant threatened one man with a knife while warning, "I kill out here," charged toward Nazaire, then Williams, and told investigators that both were stabbed in the scuffle. The later autopsy on Nazaire's body revealed that the knife had been plunged into his chest with sufficient force to penetrate cartilage and sever his subclavian vein and windpipe. The pathologist who performed that autopsy testified that Nazaire would have collapsed from massive internal bleeding about a minute after the wound was inflicted, and Nazaire did collapse shortly after his initial encounter with defendant, remaining upright just long enough to assist Williams as Williams struggled with, and was stabbed by, defendant on the ground.

When viewed in the light most favorable to the People, the knife-wielding defendant's threats to "kill" before running towards Nazaire and Williams, his admissions to investigators, his repeated stabbing of Williams...