People v. Paige

• Decision Date: 23 December 2015
• Citation: 134 A.D.3d 1048,22 N.Y.S.3d 220
• Parties: The PEOPLE, etc., respondent, v. Zaire PAIGE, appellant.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 1048
22 N.Y.S.3d 220

The PEOPLE, etc., respondent,
v.
Zaire PAIGE, appellant.

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

Dec. 23, 2015.

22 N.Y.S.3d 222

Seymour W. James, Jr., New York, N.Y. (Lorca Morello of counsel), for appellant.

22 N.Y.S.3d 223

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort, and Terrence F. Heller of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.

134 A.D.3d 1049

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Guidice, J.), rendered January 24, 2011, convicting him of murder in the second degree, assault in the first degree (three counts), assault in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was charged with, inter alia, murder in the second degree, assault in the first degree (three counts), assault in the second degree (four counts), and criminal possession of a weapon in the second degree (two counts). The People alleged that the defendant and his codefendant, Robert Crawford, acting in concert, shot and killed Lethania Garcia because they believed Garcia had killed one of their friends two years earlier.

At the defendant's jury trial, the People presented evidence that on October 27, 2008, the defendant and Crawford located Garcia in downtown Brooklyn. The People's evidence showed that the defendant and Crawford, each armed with a handgun, began shooting at Garcia while he stood on the sidewalk in front of a bakery. When the shooting began, Garcia fled into a nearby hair salon and the two gunmen followed him inside. Garcia attempted to escape out a back door, but the door was jammed. Witnesses inside the hair salon testified that everyone in the salon got down on the floor to escape the hail of bullets that flew around them. Testimony showed that one of the two gunmen stood at the door of the salon while the other gunman stood over Garcia and fired eight shots into him as he lay on the floor. Garcia sustained gunshot wounds that went through his brain, spinal cord, liver, and a lung. These injuries were fatal, and Garcia was pronounced dead at the scene. In addition to Garcia, the gunfire also struck numerous other individuals who had sought refuge in the hair salon and who had been crowded onto the floor when the shooting occurred, including a woman who sustained a total of 17 gunshot wounds and an off-duty police officer who was shot in the foot.

The defendant and Crawford fled the scene in a sport utility vehicle driven by an accomplice. At the trial, the accomplice testified pursuant to a plea agreement. His testimony provided the jury with a detailed account of the events leading up to,

134 A.D.3d 1050

and occurring after, Garcia's murder. The accomplice's testimony was the primary evidence identifying the defendant and Crawford as the perpetrators of these crimes, although mobile phone records and cell tower data were evidence of the defendant's presence at the location of the crime when the shooting occurred and other evidence corroborated the accomplice's account of the incident.

During the course of the trial, the defendant was excluded from the courtroom after he began shouting expletives at a police witness who was testifying on behalf of the People. The defendant repeatedly accused the police witness of "lying" before court officers removed him. This outburst occurred in the presence of the jury. After the court issued a curative instruction and warned the jurors not to discuss the case or begin deliberations until they were so charged, the jurors were excused for the day.

22 N.Y.S.3d 224

The court later learned that members of the jury had a discussion in the jury room regarding the credibility of police officers following the defendant's outburst. One member of the jury had reportedly stated that "she hated police officers" and that "none of them [could] be trusted." This juror—juror number eight—reportedly stated that she hid her negative views during jury selection because she "didn't want to bring any attention to herself." The court proceeded to individually interview each of the jurors and each of the alternate jurors in the presence of the prosecutor and defense counsel, questioning them about the contents of the discussion that had occurred in the jury room and whether they could remain fair and impartial. At the conclusion of this inquiry, the court dismissed two jurors—juror number eight and juror number nine. The court determined that juror number eight was grossly unqualified to serve and that she had engaged in substantial misconduct. The court dismissed juror number nine on the ground that she had engaged in substantial misconduct. The discharged jurors were replaced with alternate jurors and the trial resumed.

At the conclusion of the evidence and after summations, the jury was charged and retired to deliberate. The jury returned a verdict finding the defendant guilty of murder in the second degree, assault in the first degree (three counts), assault in the second degree, and criminal possession of a weapon in the second degree. The defendant appeared at sentencing and was permitted to address the court, at which time he maintained his innocence and directed obscenities at the Trial Justice. Noting that the defendant had "turned the streets of Brooklyn into

134 A.D.3d 1051

a war zone" and had callously "executed" Garcia and "grievously wounded... additional innocent bystanders," the court imposed a sentence of imprisonment. We affirm.

On appeal, the defendant contends that the evidence was legally insufficient to support the convictions since they were based solely on the uncorroborated testimony of the accomplice in violation of Criminal Procedure Law § 60.22(1). This contention is without merit.

Criminal Procedure Law § 60.22(1) provides that "[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense" (CPL 60.22[1] ). "[T]he role of the additional evidence is only to connect the defendant with the commission of the crime, not to prove that he committed it" (People v. Reome, 15 N.Y.3d 188, 192, 906 N.Y.S.2d 788, 933 N.E.2d 186 [internal quotation marks omitted]; see People v. Sage, 23 N.Y.3d 16, 27, 988 N.Y.S.2d 104 ; People v. Breland, 83 N.Y.2d 286, 294, 609 N.Y.S.2d 571, 631 N.E.2d 577 ). The statutory corroboration requirement may be satisfied by evidence that " ‘tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth’ " (People v. Reome, 15 N.Y.3d at 192, 906 N.Y.S.2d 788, 933 N.E.2d 186, quoting People v. Dixon, 231 N.Y. 111, 116, 131 N.E. 752 ; see People v. Sage, 23 N.Y.3d at 27, 988 N.Y.S.2d 104 ).

Here, contrary to the defendant's assertion, there was ample corroborative evidence tending to connect the defendant to these crimes. Numerous eyewitnesses testified that two shooters had been involved in the incident. One eyewitness observed the two shooters enter a sport utility vehicle after the shooting, and that witness wrote down the license plate number of the vehicle. The license plate number

22 N.Y.S.3d 225

of the sport utility vehicle led police to the accomplice. In addition, although none of the eyewitnesses to the shooting identified the defendant as the shooter, the phone records and testimony from employees of the cell phone providers served to establish the defendant's presence at the scene when the crime was committed (see CPL 60.22[1] ; People v. Vantassel, 95 A.D.3d 907, 907–908, 942 N.Y.S.2d 886 ; People v. Sudhan, 83 A.D.3d 874, 874, 920 N.Y.S.2d 678 ). The accomplice's assertion that the defendant killed Garcia because the defendant believed that Garcia had killed the defendant's friend two years earlier was corroborated by Kim Tillson, the mother of the defendant's deceased friend, who testified that the defendant called her on the date of the shooting to wish her happy birthday and to inform her that he "took care of that." Accordingly, the defendant's contention that the evidence was legally insufficient to support his convictions is without merit.

134 A.D.3d 1052

Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

The defendant also contends that he was deprived of his right to be present at his trial when the court permanently excluded him from the courtroom following his outburst. This contention is without merit.

A defendant's right to be present at a criminal trial is encompassed within the confrontation clauses of the state and federal constitutions (se...