People v. Nicholas

• Decision Date: 19 June 2014
• Citation: 118 A.D.3d 1183,988 N.Y.S.2d 277,2014 N.Y. Slip Op. 04529
• Parties: The PEOPLE of the State of New York, Respondent, v. Jermaine NICHOLAS, Also Known as Maino, Appellant.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 1183
988 N.Y.S.2d 277
2014 N.Y. Slip Op. 04529

The PEOPLE of the State of New York, Respondent,
v.
Jermaine NICHOLAS, Also Known as Maino, Appellant.

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

June 19, 2014.

[988 N.Y.S.2d 279]

Theodore J. Stein, Woodstock, for appellant.

D. Holley Carnright, District Attorney, Kingston (Gerard J. Van Loan of counsel), for respondent.

Before: PETERS, P.J., STEIN, GARRY, EGAN JR. and CLARK, JJ.

GARRY, J.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered December 7, 2011, upon a verdict convicting defendant of the crimes of conspiracy in the second degree, intimidating a victim or witness in the first degree, tampering with a witness in the first degree and criminal facilitation in the second degree.

In January 2010, the victim testified before an Ulster County grand jury regarding a shooting that he had witnessed involving codefendant Jarrin Rankin, a gang member. Following Rankin's arrest, defendant—a self-admitted gang member—and other gang members and associates close to Rankin began to search for potential witnesses. At Rankin's February 2010 arraignment, he discovered that the victim was going to testify against him. A week later, defendant called codefendant Amanda Miller asking to speak with Rankin's brother, codefendant Trevor Mattis, and ostensibly indicated to Mattis that the victim was at a deli in the City of Kingston,

[988 N.Y.S.2d 280]

Ulster County. Miller then drove Mattis and codefendants Gary Griffin and Dametria Kelley to the deli. Upon arrival, Griffin provided Mattis with a gun, and the duo met defendant and the victim in front of the deli. Mattis and the victim then walked away from the deli; defendant and Griffin went to Miller's vehicle. Shortly thereafter, Mattis fatally shot the victim, returned to Miller's vehicle and fled the scene. Defendant, Mattis, Rankin, Miller, Griffin, Kelley and another codefendant, Rondy Russ, were subsequently charged by superseding indictment with various crimes stemming from their role in the victim's death.¹

County Court, upon defendant's motion, severed defendant's trial from that of his codefendants. The court also denied defendant's motion to suppress statements that he made following his arrest based upon an alleged Payton violation ( see Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 [1980] ). A jury subsequently found defendant guilty of the crimes of conspiracy in the second degree, intimidating a victim or witness in the first degree, tampering with a witness in the first degree and criminal facilitation in the second degree. Defendant was sentenced, as a second felony offender, to concurrent terms, the longest of which was 25 years in prison, and five years of postrelease supervision. Defendant appeals, and we affirm.

Defendant first contends that County Court erred in admitting hearsay statements by his alleged coconspirators.² Where, as here, the People seek to elicit declarations made by a coconspirator, a prima facie case of conspiracy must be established before such declarations may be admitted. This requires proof “of an agreement to commit a crime and an overt act towards carrying out that agreement” ( People v. Cancer, 16 A.D.3d 835, 839, 791 N.Y.S.2d 207 [2005],lv. denied5 N.Y.3d 826, 804 N.Y.S.2d 41, 837 N.E.2d 740 [2005];see People v. Caban, 5 N.Y.3d 143, 148–149, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005];People v. Bac Tran, 80 N.Y.2d 170, 179, 589 N.Y.S.2d 845, 603 N.E.2d 950 [1992];People v. Berkowitz, 50 N.Y.2d 333, 341, 428 N.Y.S.2d 927, 406 N.E.2d 783 [1980] ).³ Here, the People proffered nonhearsay testimony at trial establishing that the individuals involved in this case were either members of the same gang as Rankin or were associated with Rankin, and that they frequently gathered at defendant's apartment. In January 2010, Russ threatened the victim's father with a razor or box cutter outside of the deli. Rankin was arraigned in February 2010 and, at that time, the People provided him with a witness list that included the victim's name. Four days later, a party was held at defendant's apartment during which Rankin called and spoke with both defendant and Mattis, among others.

[988 N.Y.S.2d 281]

On the evening of February 9, 2010, Miller was at Griffin's home when defendant called and spoke to Mattis. After the call ended, she drove Griffin, Mattis and Kelley to the deli. Upon arrival, she observed defendant and the victim standing in the doorway of the deli. Mattis exited the vehicle, at which point Griffin “slid [a] gun out” to him through the right rear window. Surveillance video from the deli captured defendant conversing with the victim prior to the arrival of Mattis and Griffin. The video also captured the victim and Mattis walking away from the deli as defendant and Griffin returned to Miller's vehicle. When defendant entered the rear of the vehicle, he “slid over into the middle” seat. Upon Griffin's request, Miller made a U–turn and parked a few car lengths from Mattis and the victim, at which point she heard two gun shots and then observed Mattis running to her vehicle and defendant opening the rear door for Mattis to enter. The proof showed that the victim was shot twice, including a fatal shot to the back of the head. Based on the foregoing evidence, we conclude that the People established a prima facie case of conspiracy through the nonhearsay testimony of other witnesses and participants, thus permitting the People to introduce the statements of defendant's coconspirators ( see People v. Caban, 5 N.Y.3d at 148, 800 N.Y.S.2d 70, 833 N.E.2d 213;People v. Cancer, 16 A.D.3d at 839, 791 N.Y.S.2d 207;compare People v. Conklin, 139 A.D.2d 156, 162, 531 N.Y.S.2d 374 [1988],lv. denied72 N.Y.2d 1044, 534 N.Y.S.2d 943, 531 N.E.2d 663 [1988] ).

Defendant's challenges to the legal sufficiency of the evidence supporting his convictions for tampering with a witness in the first degree and criminal facilitation in the second degree are unpreserved for our review; although he moved for a trial order of dismissal, he failed to identify any deficiency in the People's proof as to those charges ( see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008];People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995];People v. Greenfield, 112 A.D.3d 1226, 1226, 977 N.Y.S.2d 486 [2013] ). In any event, were we to consider these challenges, we would find the evidence legally sufficient to lead a rational juror to conclude that all the essential elements of each crime were proved beyond a reasonable doubt ( seePenal Law §§ 115.05, 215.13[2]; People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).

As to defendant's challenge to the legal sufficiency of his conviction of conspiracy in the second degree, the People were required to prove that defendant entered into an agreement with his coconspirators to murder the victim and that, in furtherance of the conspiracy, Mattis killed the victim ( seePenal Law §§ 105.15, 105.20; People v. Arroyo, 93 N.Y.2d 990, 991, 695 N.Y.S.2d 537, 717 N.E.2d 696 [1999];People v. McCoy, 89 A.D.3d 1218, 1221, 933 N.Y.S.2d 425 [2011],lvs. denied18 N.Y.3d 959, 960, 944 N.Y.S.2d 488, 967 N.E.2d 713 [2012] ). Upon the charge of intimidating a victim or witness in the first degree, the People were required to adduce proof that defendant intentionally aided Mattis in causing the victim serious physical injury for the purpose of preventing him from...