People v. Green

• Decision Date: 06 May 2021
• Docket Number: 110160
• Parties: The PEOPLE of the State of New York, Respondent, v. Messiah GREEN, Appellant.
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 1106

146 N.Y.S.3d 360

The PEOPLE of the State of New York, Respondent,

v.Messiah GREEN, Appellant.

110160

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

Calendar Date: March 11, 2021

Decided and Entered: May 6, 2021

Tina K. Sodhi, Alternate Public Defender, Albany (Steven M. Sharp of counsel), for appellant.

P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Clark, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Clark, J.

Appeal from a judgment of the Supreme Court (McDonough, J.), rendered January 12, 2018 in Albany County, upon a verdict convicting defendant of the crimes of robbery in the second degree (three counts), assault in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree (four counts).

Sometime during the 8:00 hour on the evening of March 27, 2017, the victim was walking in his neighborhood when he encountered three men that held him up at gun point, struck him in the head several times and stole his iPhone and wallet, which contained several credit cards and a debit card. The victim reported the incident shortly after it occurred, and law enforcement was able to track the location of the stolen cell phone with the "Find my iPhone" application. Ultimately, based on real-time location data received from the application, law enforcement stopped a vehicle with four occupants – defendant and his codefendants, Zecharihas Chaney, Kieshawn Chaney and Raymeen Cooper – and discovered the victim's wallet and cell phone inside. Defendant was subsequently indicted, together with his codefendants, on the charges of robbery in the second degree (three counts), assault in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree (four counts). Defendant was convicted as charged following a jury trial and he moved, prior to sentencing, to set aside the verdict pursuant to CPL 330.30(3). Supreme Court denied the motion without a hearing and thereafter sentenced defendant, as a second felony offender, to various concurrent sentences, the longest of which was 10 years in prison, followed by five years of postrelease supervision, for each of the three convictions of robbery in the second degree. Defendant appeals, and we now reverse and dismiss the indictment against defendant.

Defendant argues that his convictions are not supported by legally sufficient evidence and are against the weight of the evidence. Specifically, defendant asserts that the People failed to prove that he was one of the three perpetrators who robbed and assaulted the victim or that he knowingly possessed the victim's stolen credit and debit cards. Defendant also argues that the evidence failed to establish the element of physical injury required for his convictions of robbery in the second degree and assault in the second degree, as charged in counts 1 and 4 of the indictment.¹ We agree with defendant on all three points and, thus, find that his convictions are not supported by legally sufficient evidence and are against the weight of the evidence.

We turn first to defendant's convictions for robbery in the second degree, assault in the second degree and grand larceny in the fourth degree under counts 1 through 5 of the indictment. As relevant here, "[a] person is guilty of robbery in the second degree when he [or she] forcibly steals property and" he or she "is aided by another person actually present" or, "[i]n the course of the commission of the crime or immediate flight therefrom, he [or she] or another participant in the crime ... [c]auses physical injury to any person who is not a participant in the crime" or "[d]isplays what appears to be a ... firearm" ( Penal Law § 160.10[1], [2] ). Additionally, "[a] person is guilty of assault in the second degree when ... [i]n the course of and in furtherance of the commission or attempted commission of a felony, ... or of immediate flight therefrom, he [or she], or another participant ... causes physical injury to a person other than one of the participants" ( Penal Law § 120.05[6] ). Further, "[a] person is guilty of grand larceny in the fourth degree when he [or she] steals property and when ... [t]he property, regardless of its nature and value, is taken from the person of another" ( Penal Law § 155.30[5] ). As with all convictions, the People must prove the issue of identity beyond a reasonable doubt – that is, that the defendant was the person who committed the charged crimes (see People v. Warren, 76 N.Y.2d 773, 775, 559 N.Y.S.2d 954, 559 N.E.2d 648 [1990] ; People v. Whalen, 59 N.Y.2d 273, 279, 464 N.Y.S.2d 454, 451 N.E.2d 212 [1983] ).

At trial, the victim testified that he was walking alongside the road in his neighborhood on the evening in question and that he "was carrying a red flashing baton so [that] cars could see [him]" in the dark. He stated that, as he was walking, he heard footsteps rapidly approaching behind him and felt a hand hit his shoulder and spin him around. The victim testified that he then observed a man standing directly in front of him with a gun and two other men – one on either side. The victim asserted that he was shoved to his knees and that the perpetrators began shouting at him to turn over his belongings. He stated that he was struck on the left and right sides of his head as he was fumbling to take out his wallet and cell phone and that he was struck again – knocking him onto his side – once he turned them over. The victim testified that he "must have blacked out for a second" and that, as he was coming out of a "daze[ ]," he felt "something bump into [his] head" and then felt and heard a "puff, click ... three or four times in rapid succession." The victim stated that he remained lying on his side and "eventually heard a car driving away," at which point he "slowly started picking [himself] up." The victim testified that it took him "a couple minutes to jog home" and that, once he arrived home, he relayed his encounter to his spouse and then called 911.

The evidence reflected that several law enforcement officers responded to the victim's home, where the victim had already begun tracking his stolen cell phone with the "Find my iPhone" application. Law enforcement officers that responded to the victim's home testified that the victim reported being robbed and assaulted by three black men and that, with the assistance of the "Find my iPhone" application, they coordinated a search to locate the stolen wallet and cell phone. Law enforcement officers involved in the search testified that, when they began tracking the cell phone, the application indicated that the cell phone was at a particular liquor store in the City of Albany. However, as established by the evidence, law enforcement thereafter determined, based upon the speed at which the location data was updating, that the cell phone had left the liquor store in a vehicle. The testimony demonstrated that law enforcement tracked the cell phone over several blocks in the City of Albany before ultimately stopping the vehicle containing the cell phone. The evidence, including testimony and dash cam video footage, established that four black men were in the vehicle at the time that it was pulled over, with Zecharihas Chaney in the driver seat, Kieshawn Chaney in the front passenger seat, Cooper in the rear driver side seat and defendant in the rear passenger side seat. The victim's cell phone and wallet were found during a search of the vehicle, but a gun was not.

The evidence presented by the People did not establish a firm timeline of events. The victim did not testify to the approximate time of the robbery and assault. Rather, in the course of questioning the victim, the prosecutor supplied the approximate time of "a little bit before 8:30" p.m.² The People failed to put on any proof that revealed the time at which the victim made the 911 call, when the responding law enforcement officers arrived at the victim's home or when the vehicle containing the cell phone was stopped. However, video footage obtained from the liquor store demonstrated that the vehicle arrived at the liquor store around 8:41 p.m., where it remained for a total of six to seven minutes. The footage reveals that, during that time, both Zecharihas Chaney and Kieshawn Chaney separately spoke to the occupant(s) of a nearby parked vehicle and that Zecharihas Chaney entered the liquor store. The footage does not reveal whether there are additional passengers in the vehicle. It is unclear how soon after the vehicle left the liquor store that it was stopped by the police.

On the issue of identity, the testimony demonstrated that, in the aftermath of the robbery and assault, the victim could not provide descriptions of his assailants, aside from stating that he had been robbed and assaulted by three black men. At trial, the victim testified that he had been able to make some observations of his assailants for "[a] few seconds" after being spun around. According to the victim, the armed man in the middle wore a tight fighting mask and "a dark sweatshirt or jacket" with "silver accents of writing" and "had a lighter skin tone" and "was a little shorter maybe" than the men on either side of him. With respect to the man to the left of the armed man, the victim testified that the bottom half of the man's face was covered, that the man was taller than him and the armed man and that the man was black with a "darker skin tone than the man in the middle." As for the man to the right of the armed man, the victim stated that the man's face was covered and that he "also appeared a little taller" and had a "darker skin tone" than the armed man. The victim testified that he was unsure what color clothing the unarmed men were wearing. Upon cross-examination, the victim acknowledged that his testimony at trial was the first time that he had...