People v. Myrick

• Decision Date: 14 January 2016
• Citation: 135 A.D.3d 1069,22 N.Y.S.3d 691
• Parties: The PEOPLE of the State of New York, Respondent, v. El Kahliem MYRICK, Also Known as Coop, Also Known as Naji, Also Known as Naji Coop, Appellant.
• Court: New York Supreme Court — Appellate Division

135 A.D.3d 1069
22 N.Y.S.3d 691

The PEOPLE of the State of New York, Respondent,
v.
El Kahliem MYRICK, Also Known as Coop, Also Known as Naji, Also Known as Naji Coop, Appellant.

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

Jan. 14, 2016.

22 N.Y.S.3d 692

Danielle Neroni Reilly, Albany, for appellant.

P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.

Before: PETERS, P.J., McCARTHY, EGAN JR., DEVINE and CLARK, JJ.

CLARK, J.

135 A.D.3d 1069

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered October 1, 2013, upon a verdict convicting defendant of the crimes of robbery in the first degree and robbery in the second degree.

Defendant and a codefendant, Jordan Renak, were charged in a five-count indictment with three counts of robbery in the first degree, one count of robbery in the second degree and one count of criminal possession of a weapon in the second degree, which stemmed from their involvement in a robbery and shooting that occurred on October 26, 2012 in the area of 166 Third Avenue in the City of Albany. In his pretrial omnibus motion, defendant moved to, among other things, suppress

22 N.Y.S.3d 693

oral statements that he made to the police during a police interrogation, which motion County Court denied. Following a jury trial, defendant was acquitted of two counts of robbery in the first degree and one count of criminal possession of a weapon in the second degree and convicted of one count of robbery in the first degree (count one) and one count of robbery in the second degree (count four). Defendant was sentenced to an aggregate prison term of seven years, to be followed by five years of postrelease supervision. Defendant appeals.

Initially, we address defendant's contention that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence because the People failed to provide corroborating evidence to support the testimony of the accomplice that implicated him in the crime. The standard for reviewing the legal sufficiency of evidence in a criminal case is "whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal citation omitted] ).

As relevant here, to prove that defendant was guilty of robbery

135 A.D.3d 1070

in the first degree, the People had to establish that defendant "forcibly [stole] property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime [c]ause[d] serious physical injury to any person who [was] not a participant in the crime" (Penal Law § 160.15[1] ). To prove that defendant was guilty of robbery in the second degree the People were required to establish that defendant "forcibly [stole] property" and that "[h]e [was] aided by another person actually present" (Penal Law § 160.10[1] ). "A person forcibly steals property when he or she uses or threatens the immediate use of physical force upon another person for the purpose of ... compelling the owner of such property or another person to deliver up the property" (People v. Griffin, 122 A.D.3d 1068, 1069, 996 N.Y.S.2d 766 [2014], lv. denied 25 N.Y.3d 1164, 15 N.Y.S.3d 296, 36 N.E.3d 99 [2015] [internal quotation marks, brackets and citations omitted]; see Penal Law § 160.00[2] ; People v. Gordon, 23 N.Y.3d 643, 649–650, 992 N.Y.S.2d 700, 16 N.E.3d 1178 [2014] ).

Particular to defendant's appellate contentions, a person may be found guilty of robbery under a theory of accomplice liability when he or she, with the intent to rob, "solicits, requests, commands, importunes, or intentionally aids [another] person to engage in ... conduct" that constitutes robbery (Penal Law § 20.00 ; see People v. Vicioso, 116 A.D.3d 1250, 1251, 983 N.Y.S.2d 691 [2014] ; People v. Bush, 75 A.D.3d 917, 918, 905 N.Y.S.2d 699 [2010], lv. denied 15 N.Y.3d 919, 913 N.Y.S.2d 646, 939 N.E.2d 812 [2010] ). Although "[a] defendant may not be convicted solely on the basis of accomplice testimony that lacks the support of ‘corroborative evidence tending to connect the defendant with the commission of [the charged] offense’ " (People v. Rodriguez, 121 A.D.3d 1435, 1439, 995 N.Y.S.2d 785 [2014], lv. denied 24 N.Y.3d 1122, 3 N.Y.S.3d 764, 27 N.E.3d 478 [2015], quoting CPL 60.22[1] ), the amount of additional evidence necessary is only that which "may reasonably satisfy the jury that the accomplice is telling the truth" (People v. Reome, 15 N.Y.3d 188, 192, 906 N.Y.S.2d 788, 933 N.E.2d 186 [2010] [internal quotation marks and citation omitted]; see

22 N.Y.S.3d 694

People v. Rodriguez, 121 A.D.3d at 1439, 995 N.Y.S.2d 785 ). Importantly, "the role of the additional evidence is only to connect the defendant with the commission of the crime, not to prove that he [or she] committed it" (People v. Hudson, 51 N.Y.2d 233, 238, 433 N.Y.S.2d 1004, 414 N.E.2d 385 [1980] ).

At trial, the People presented the testimony of the victim, who testified that at about 7:30 p.m. on the evening in question, Eugene Royal called him, asking him to come over to Third Avenue to "drop off" a few bags of marihuana. The victim arrived at the parking lot, waited for Royal for approximately 10 to 15 minutes, then left after hearing from Royal that he had been delayed. While sitting in his car and waiting for Royal

135 A.D.3d 1071

in the parking lot a second time, the victim saw four people wearing hooded sweatshirts with the hoods pulled up, not including Royal, approach him. One of the four individuals asked the victim whether he had marihuana to sell and, as the victim tried to get the marihuana, one person grabbed him and pointed a gun at him. The victim was then pulled out of the car, punched in the back of his head and pushed further back to the curb. A tussle then occurred between the victim and one person and, in the chaos that ensued as the victim tried to get back in his car, the victim was shot in the abdomen, for which he underwent emergency surgery. The victim testified that he did not know any of the people involved in the crime except for Royal—who arrived in the parking lot at some point during the robbery—and that he did not see the face of the person who pointed the gun at him, but did see that such person wore a white hooded sweatshirt with the word "Hollister" on it.

Rahjahmiere Cole, who pleaded guilty to participating in the robbery, testified that he, Renak and Royal were at a basketball court near the Third Avenue apartments at about 7:30 p.m. on the night in question. They then met up with defendant, who had a gun on him, at the Third Avenue apartments and planned to lure the victim to the parking lot and rob him of some marihuana. Cole testified that the victim showed up in the parking lot, then left and came back. According to Cole, after the victim arrived the second time, he, Renak, Royal and defendant robbed the victim. Cole further testified that a tussling between Royal and the victim ensued inside the victim's car and that defendant was also in the victim's car and the victim was shot. Finally, Cole testified that he did not know what happened with the gun after the robbery and shooting.

Upon cross-examination, Cole admitted that his plea deal with the People was conditioned on him providing cooperation and truthful testimony in defendant's trial. Cole testified that, during his interview with the police, he...