People v. Malloy

• Citation: 88 N.Y.S.3d 652,166 A.D.3d 1302
• Decision Date: 21 November 2018
• Docket Number: 108394
• Parties: The PEOPLE of the State of New York, Respondent, v. Edward MALLOY, Also Known As EB, Appellant.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1302

88 N.Y.S.3d 652

The PEOPLE of the State of New York, Respondent,

v.Edward MALLOY, Also Known As EB, Appellant.

108394

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

Calendar Date: September 11, 2018

Decided and Entered: November 21, 2018

Paul J. Connolly, Delmar, for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: Garry, P.J., Clark, Mulvey, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Mulvey, J.

Appeal from a judgment of the Supreme Court (Mott, J.), rendered March 11, 2016 in Albany County, upon a verdict convicting defendant of the crimes of murder in the second degree and criminal possession of a weapon in the second degree.

Following a jury trial, defendant was convicted of murder in the second degree and criminal possession of a weapon in the second degree. The charges stemmed from a February 16, 2014 incident outside a tavern in the City of Albany during which the victim was shot multiple times and killed. Defendant was sentenced to consecutive prison terms of 22 years to life on the murder conviction and seven years, followed by five years of postrelease supervision, on the criminal possession of a weapon conviction. He now appeals.

Initially, we reject defendant's contention that the indictment must be dismissed because the integrity of the grand jury proceeding was impaired. A grand jury proceeding that yields an indictment is defective when it "fails to conform to the requirements of [CPL article 190] to such degree that the integrity thereof is impaired and prejudice to the defendant may result" ( CPL 210.35[5] ). Although a "defendant need not demonstrate actual prejudice under this statutory scheme to prevail" ( People v. Sayavong, 83 N.Y.2d 702, 709, 613 N.Y.S.2d 343, 635 N.E.2d 1213 [1994] ), "[d]ismissal of an indictment pursuant to CPL 210.35(5) is a drastic, exceptional remedy and should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the grand jury" ( People v. Sutherland, 104 A.D.3d 1064, 1066, 962 N.Y.S.2d 463 [2013] [internal quotation marks, brackets and citations omitted]; see People v. Thompson, 22 N.Y.3d 687, 699, 985 N.Y.S.2d 428, 8 N.E.3d 803 [2014] ; People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996] ).

The minutes of the grand jury presentment reflect three instances where a grand juror acknowledged that he/she knew a witness.¹ In each instance, the prosecutor inquired whether there was anything concerning the grand juror's knowledge of the witness that would lead the grand juror to believe that he/she could not be fair and impartial, and each answered in the negative (see People v. Richardson, 132 A.D.3d 1239, 1241, 17 N.Y.S.3d 207 [2015] ; People v. Farley, 107 A.D.3d 1295, 1296, 968 N.Y.S.2d 209 [2013], lv denied 21 N.Y.3d 1073, 974 N.Y.S.2d 322, 997 N.E.2d 147 [2013] ; compare People v. Revette, 48 A.D.3d 886, 888, 851 N.Y.S.2d 299 [2008] ). While we agree with defendant that the precise nature of the relationship between each grand juror and the particular witness should have been further explored by the prosecutor (see generally People v. Revette, 48 A.D.3d at 887–888, 851 N.Y.S.2d 299 ), we do not find the exceptional remedy of dismissal to be warranted under the facts and circumstances of this case. The salient evidence against defendant during the grand jury presentment came not from the testimony of any of the civilian witnesses who were present on the evening of the incident, but from the extensive surveillance video footage that captured the shooting itself and the events that unfolded both prior and subsequent thereto. Indeed, the testimony of the three witnesses at issue proved to be of little, if any, consequence; such testimony tended neither to incriminate nor exonerate defendant and, in large measure, did nothing more than confirm their presence at the scene. Mindful that "the statutory test, which does not turn on mere flaw, error or skewing ... [,] is very precise and very high" ( People v. Darby, 75 N.Y.2d 449, 455, 554 N.Y.S.2d 426, 553 N.E.2d 974 [1990] ; accord People v. Thompson, 22 N.Y.3d at 699, 985 N.Y.S.2d 428, 8 N.E.3d 803 ; People v. Baptiste, 160 A.D.3d 976, 978, 76 N.Y.S.3d 103 [2018], lv denied 31 N.Y.3d 1145, 83 N.Y.S.3d 426, 108 N.E.3d 500 [2018] ), we find no "articulable ‘likelihood of’ or ... ‘potential for’ prejudice" stemming from the grand jurors' prior knowledge of the witnesses in question ( People v. Adessa, 89 N.Y.2d 677, 686, 657 N.Y.S.2d 863, 680 N.E.2d 134 [1997] ; see People v. Piznarski, 113 A.D.3d 166, 181, 977 N.Y.S.2d 104 [2013], lv denied 23 N.Y.3d 1041, 993 N.Y.S.2d 255, 17 N.E.3d 510 [2014] ; People v. La Duca, 172 A.D.2d 1054, 1055, 569 N.Y.S.2d 308 [1991] ).

Defendant next challenges the verdict as unsupported by legally sufficient evidence and against the weight of the evidence, primarily arguing that the People's proof – which was largely circumstantial in nature – failed to establish his identity as the shooter.² "[E]ven in circumstantial evidence cases, the standard for appellate review of legal sufficiency issues is ‘whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the fact finder on the basis of the evidence at trial, viewed in the light most favorable to the People’ " ( People v. Hines, 97 N.Y.2d 56, 62, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], quoting People v. Williams, 84 N.Y.2d 925, 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367 [1994] ; accord People v. Reichel, 110 A.D.3d 1356, 1363, 975 N.Y.S.2d 470 [2013], lv denied 22 N.Y.3d 1090, 981 N.Y.S.2d 675, 4 N.E.3d 977 [2014] ). When conducting a weight of the evidence review, we must "first determine, based on all of the credible evidence, whether a different result would have been unreasonable and, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the [proof] to determine if the verdict is supported by the weight of the evidence" ( People v. Wilson, 164 A.D.3d 1012, 1013, 83 N.Y.S.3d 705 [2018] ; see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).

The People's theory of the case was that defendant intentionally shot and killed the victim as the culmination of an ongoing, heated altercation between the two that transpired less than an hour earlier. Because the murder weapon was never discovered and none of the individuals who were undisputedly present at the scene claimed to have witnessed the killer in the act of shooting, the People relied heavily upon surveillance video footage taken from cameras located in the interior and exterior of the tavern, as well as video footage obtained from a City-owned street camera positioned approximately 100 yards south of the tavern. Taken together, the footage shows that defendant and the victim separately arrived at the tavern at approximately 3:00 a.m. on the morning of February 16, 2014. While outside, they are seen exchanging words and engaging in physical contact, with defendant ultimately pushing the victim to the ground. The two thereafter proceeded inside where the verbal dispute continued, causing the tavern's bouncer to intervene in an effort to stop what he perceived to be an imminent altercation. "While this proof of a potential motive does not establish an element of the crime, it cannot be ignored" ( People v. Stanford, 130 A.D.3d 1306, 1307, 14 N.Y.S.3d 560 [2015] [internal quotation marks and citations omitted], lv denied 26 N.Y.3d 1043, 22 N.Y.S.3d 172, 43 N.E.3d 382 [2015] ; see People v. Marin, 65 N.Y.2d 741, 745, 492 N.Y.S.2d 16, 481 N.E.2d 556 [1985] ; People v. Thibeault, 73 A.D.3d 1237, 1239–1240, 900 N.Y.S.2d 501 [2010], lv denied 15 N.Y.3d 810, 908 N.Y.S.2d 170, 934 N.E.2d 904 [2010], cert denied 562 U.S. 1293, 131 S.Ct. 1691, 179 L.Ed.2d 628 [2011] ).

The victim exited the tavern roughly 10 minutes later, after which defendant can be seen making several calls on his cell phone. Soon thereafter, a Buick Rendezvous being driven by defendant's girlfriend, Marika Hodge, arrives and parks in front of the tavern. As Hodge enters the tavern, defendant immediately gets up from his seat and walks to the rear of the establishment. Hodge follows, with her right hand stiffly in her coat pocket. The two then proceed to enter the bathroom and reemerge approximately 20 seconds later, with Hodge's hand now swinging freely beside her. Defendant, Hodge and several others – including Marquetta Jackson, a mutual friend of defendant and the victim – thereafter remain in the tavern until approximately 3:30 a.m., when the tavern begins to close down.

Once outside, defendant – who appears in a visibly agitated state – can be seen pacing and looking around while placing his hand behind his back as if attempting to grasp something. Moments later, an animated conversation transpires between defendant and Hodge during which Hodge is depicted grabbing at defendant and reaching around his backside in an apparent attempt to pull something away from him. At this point, video surveillance captures defendant holding a gun behind his back before eventually secreting it in his rear waistband. Meanwhile, from the street camera, the victim can be observed exiting his vehicle and walking to a small parking lot located approximately 20 to 25 feet south of the tavern. Jackson – who had made three successive attempts to contact the victim during the brief period since she and the others exited the tavern – then leaves the front of the establishment and can be seen on footage from the street camera walking in the direction of the victim. When defendant went to follow, Hodge attempted to physically restrain him and the two grappled before defendant eventually pulled away. Defendant then proceeded to the parking lot where the...