People v. Jeanty

• Decision Date: 13 January 2000
• Citation: 268 A.D.2d 675,702 N.Y.S.2d 194
• Court: New York Supreme Court — Appellate Division
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>PATRICK JEANTY, Also Known as BAKIM JOHNSON, BLACK and BERNARD, Appellant.

268 A.D.2d 675

702 N.Y.S.2d 194

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.PATRICK JEANTY, Also Known as BAKIM JOHNSON, BLACK and BERNARD, Appellant.

Spain, J.

Decided January 13, 2000.

Cardona, P. J., Peters, Carpinello and Graffeo, JJ., concur.

Spain, J.

Following a jury trial, defendant was convicted of felony murder and related crimes based upon his role in the March 12, 1997 robbery and burglary of the home of Richard Vale in the City of Schenectady, Schenectady County, during which Sheryl (Denise) Toyloy, who was living with Vale, was killed. Pursuant to a cooperation agreement, one of the three participants in the crimes, James Young, provided detailed testimony at trial outlining defendant's role. Young's testimony established that defendant had visited Toyloy, with whom he had a drug-related relationship, earlier in the day at Vale's residence, leaving a specific window unlocked to permit later entry by an accomplice, Rashad Scott, who Toyloy did not know, for the purpose of their planned robbery of the residence after Vale returned from work. Pursuant to their plan, later that afternoon the trio returned in defendant's vehicle to Vale's residence, Scott entered the window to which defendant directed him while defendant and Young waited outside. Scott subdued Toyloy, bound her and covered her with a blanket. After Scott opened the front door, defendant and Young—carrying a .357-caliber magnum pistol—entered the house. Toyloy's wrists and ankles were then tied, the blanket was tied around her head and shoulders and she was moved to a less visible location in the house. Approximately 45 minutes later, during which Toyloy remained motionless and silent, Young and defendant found that she had no pulse. It was later determined that she had died of asphyxiation.

Two hours later, immediately upon Vale's return home, defendant participated in a vicious beating of Vale, repeatedly striking him in the head with Young's gun, and Young thereafter handcuffed him. The robbers then extracted the combination of a basement safe from Vale and, after failing in their effort to open it, forced Vale to open it. They emptied the safe containing cash and coins valued at approximately $800, gagged and bound Vale and fled, dividing the proceeds. Defendant and Young fled to Kings County. Vale, bleeding profusely, managed to flee to a neighbor's home for help and was rushed by ambulance to the hospital for emergency medical treatment. Defendant and Young were arrested approximately two months later after Queens County narcotics detectives received information from an informant, who testified at trial that defendant had admitted in detail his participation in a robbery and murder occurring in the City of Schenectady. Defendant also subsequently admitted his participation in these crimes to a fellow inmate in jail, who also testified at trial.

Defendant was convicted of felony murder (count 1), three counts of robbery in the first degree (counts 2, 3 and 4)—based upon the serious physical injury to Toyloy (count 2) and Vale (count 3 [Penal Law § 160.15 (1)]) and the use of a dangerous instrument (count 4 [Penal Law § 160.15 (3)])—two counts of burglary in the first degree (counts 5 and 6) (see, Penal Law § 140.30 [2] [physical injury to non participant]; § 140.30 [3] [use of dangerous instrument]) and two counts of assault in the first degree (counts 7 and 9) (see, Penal Law § 120.10 [1], [4] [dangerous instrument and serious physical injury]).^[1] Defendant was sentenced as a second violent felony offender to terms of imprisonment which, in the aggregate, totaled 75 years to life.

Defendant appeals raising a variety of appellate issues which, aside from certain technical corrections to defendant's sentence, are determined to be without merit. Defendant's primary contention is that the People failed to prove beyond a reasonable doubt that Toyloy—the victim of the murder—was not a participant in the crimes committed, a necessary element of felony murder (see, Penal Law § 125.25 [3]; see also, People v Stokes, 88 NY2d 618, 623). In moving to dismiss, defendant did not raise this alleged defect in the proof and, thus, this issue is not preserved for appellate review (see, CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19). In any event, viewing the evidence in the light most favorable to the People and according them the benefit of all favorable inferences, we conclude that a rational trier of fact could most certainly have concluded beyond a reasonable doubt that Toyloy was not a participant in the underlying felonies (see, People v Bleakley, 69 NY2d 490, 495; see also, People v Cabey, 85 NY2d 417, 420; People v Contes, 60 NY2d 620, 621).

Defendant further contends that he established the affirmative defense to felony murder available to an accomplice of a participant who kills (see, Penal Law § 125.25 [3] [sometimes referred to as the "nonslayer" defense]) and that the jury's contrary finding was against the weight of the evidence.^[2] County Court twice correctly instructed the jury on this affirmative defense which the jury rejected, convicting defendant of felony murder, a verdict fully supported by the trial testimony. Specifically, defendant failed to prove that he did not "in any way * * * cause or aid" in Toyloy's death (Penal Law § 125.25 [3] [a]). Young's testimony established, inter alia, that defendant planned the robbery, left the window unlocked, directed Scott to it and helped bind Toyloy and move her body. Similarly, since the very nature of this criminal plan contemplated and effected the violent and surprise attack on two people inside their home, defendant did not demonstrate that he "[h]ad no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury" (Penal Law § 125.25 [3] [d]). Further, defendant failed to prove that he had no reasonable ground to believe that any of the participants were armed with a deadly weapon (see, Penal Law § 125.25 [3] [c]). In view of the foregoing, we reject defendant's claims in this regard (see, People v Bleakley, supra, at 495).

Also without merit is defendant's contention that County Court erred in permitting the People—during the trial—to amend count 1 of the indictment charging felony murder to include burglary as an underlying felony in addition to robbery which was specified. The amendment did not alter the theory on which defendant was indicted as reflected in the evidence before the Grand Jury and, indeed, the Grand Jury was charged to consider both theories of felony murder having already considered the evidence on the robbery and burglary charges (see, CPL 200.70 [1]). Likewise, defendant has not demonstrated how the amendment prejudiced him in any manner (see, People v Teribury, 229 AD2d 829; People v Diaz, 175 AD2d 412, 413, lv denied 79 NY2d 826; People v Murray, 92 AD2d 617). Furthermore, the amendment did not add a new offense or entirely new count to the indictment and, in fact, count 1 already charged and correctly stated the offense of felony murder (see, CPL 200.70 [2] [a]; cf., People v Perez, 83 NY2d 269; People v Bingham, 263 AD2d 611, lv denied 93 NY2d 1014; People v Green, 250 AD2d 143, lv denied 93 NY2d 873).

We next reject defendant's contention that the People failed to prove that Vale sustained serious physical injury, a necessary element of robbery in the first degree under count 3 (Penal Law § 160.15 [1]), and both counts of assault in the first degree, counts 7 and 9 (Penal Law § 120.10 [1], [4]). The testimony of the emergency room physician who treated Vale showed, inter alia, that Vale sustained seven deep head or facial lacerations which were 1 to 3 inches in length and penetrated either the skull membrane or bone, requiring two layers of 50 sutures and resulting in permanent scarring. If Vale's injuries had been left untreated he could have bled to death. Vale also sustained a fractured finger requiring surgical repair and months of physical therapy, a chipped tooth and bruises. Thus, viewed in the light most favorable to the People, the evidence supported the jury's determination on counts 3, 7 and 9 that Vale sustained serious physical injury (see, Penal Law § 10.00 [10]; People v Quesnel, 238 AD2d 725, 726-727, lv denied 90 NY2d 896; People v Perez, 184 AD2d 1033, 1034, lv denied 80 NY2d 932; People v Navedo, 47 AD2d 773, cert denied 422 US 1011).

Equally unavailing is defendant's contention that County Court erred in denying his motion without a hearing to suppress any testimony regarding the contents of an audiotape of a phone call between Toyloy and an unidentified male which was recorded at Vale's residence on the day of these crimes. The audiotape was created by an automatic taping system which Vale had set up on his telephone in his home, of which Toyloy was aware. In moving to suppress (see, CPL 710.20, 710.60), defendant failed to submit sworn allegations of fact that he was a participant in the subject phone conversation; thus, he failed to demonstrate that he was an "aggrieved person" with a legitimate expectation of privacy and standing to challenge the admissibility of the audiotape (see, 18 USC § 2510 [11]; § 2518 [10]; People v Wesley, 73 NY2d 351, 357-359; see also, Alderman v United States, 394 US 165, 174; United States v Cresta, 592 F Supp 889, 898-899).^[3]

Further, upon our review we discern no error in County Court's ruling permitting limited evidence of defendant's uncharged drug-related activities, as the evidence was not offered solely to raise an improper inference of defendant's propensity as a drug dealer to commit the crimes charged (see, People v Ventimiglia, 52 NY2d 350, 359; People v Graves, 194 AD2d 925, 926-927, lv denied 82 NY2d 719; see also, People v Alvino, 71 NY2d 233, 242). Rather, this evidence was relevant to matters material to the crimes charged such as defendant's identity, and was properly admitted as background...