People v. Rivera

• Decision Date: 12 January 2023
• Docket Number: 112055
• Parties: The PEOPLE of the State of New York, Respondent, v. Eric S. RIVERA, Appellant.
• Court: New York Supreme Court — Appellate Division

212 A.D.3d 942
181 N.Y.S.3d 387

The PEOPLE of the State of New York, Respondent,
v.
Eric S. RIVERA, Appellant.

112055

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

Calendar Date: November 22, 2022
Decided and Entered: January 12, 2023

181 N.Y.S.3d 389

Danielle Neroni Reilly, Albany, for appellant.

Lorraine Diamond, District Attorney, Fonda (Manpreet Kaur of counsel), for respondent.

Before: Lynch, J.P., Clark, Pritzker, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Fisher, J.

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Appeal from a judgment of the County Court of Montgomery County (Felix J.

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Catena, J.), rendered May 17, 2019, upon a verdict convicting defendant of the crimes of murder in the second degree and conspiracy in the second degree.

In June 2018, the victim was shot and killed on his front porch. During the ensuing investigation, defendant made several incriminating oral and written statements to law enforcement. Ultimately, defendant, Gary L. Sweet and Aaron Cockfield Jr. were charged, by a joint indictment, with murder in the second degree and conspiracy in the second degree. Following a jury trial, defendant was convicted as charged. Thereafter, defendant agreed to waive his right to appeal and to testify in a trial against Sweet, in consideration of a promised prison sentence. Defendant then provided detailed testimony under oath as to what occurred on the night of the victim's death, and was subsequently sentenced, in accordance with the sentencing agreement, to concurrent prison terms of 15 years to life on the murder conviction, and 8? to 25 years on the conspiracy conviction.¹ We previously reviewed Sweet's conviction, which was affirmed on appeal ( People v. Sweet, 200 A.D.3d 1315, 1318, 157 N.Y.S.3d 636 [3d Dept. 2021], lv denied 38 N.Y.3d 930, 164 N.Y.S.3d 13, 184 N.E.3d 834 [2022] ). Defendant appeals.

Initially, we agree with defendant's contention that the waiver of appeal is invalid. Although "a defendant may waive his or her right to appeal from a jury verdict" ( People v. Leflore, 154 A.D.3d 1164, 1164, 64 N.Y.S.3d 148 [3d Dept. 2017], lv denied 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391 [2018] ), the "totality of the circumstances" surrounding such waiver must reveal that the defendant understood the nature of the appellate rights being waived and must not suggest a complete bar to taking an appeal ( People v. Shanks, 37 N.Y.3d 244, 252–253, 154 N.Y.S.3d 646, 176 N.E.3d 682 [2021] [internal quotation marks and citation omitted]; see People v. Sims, 207 A.D.3d 882, 883, 172 N.Y.S.3d 195 [3d Dept. 2022] ; People v. Alexander, 207 A.D.3d 878, 879, 172 N.Y.S.3d 516 [3d Dept. 2022] ). Here, the written waiver of appeal indicated that it encompasses "any other matters" for which defendant may have an appeal as of right in state or federal court, and that it further waives "all matters related to the conviction" which "will mark the end

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of [defendant's] case." County Court's oral colloquy did not attempt to clarify that the appeal waiver was not a total bar to taking an appeal and, therefore, given this mischaracterization of the appellate rights waived, we are unable to find that defendant understood the nature of the appellate rights being waived (see People v. Alexander, 207 A.D.3d at 879, 172 N.Y.S.3d 516 ; People v. Anderson, 184 A.D.3d 1020, 1020, 124 N.Y.S.3d 589 [3d Dept. 2020], lv denied 35 N.Y.3d 1064, 129 N.Y.S.3d 363, 152 N.E.3d 1165 [2020] ). Accordingly, we find that defendant did not enter a knowing, intelligent and voluntary appeal waiver (see People v. Lafond, 189 A.D.3d 1824, 1825, 137 N.Y.S.3d 222 [3d Dept. 2020], lv denied 36 N.Y.3d 1121, 146 N.Y.S.3d 193, 169 N.E.3d 551 [2021] ; compare People v. Sims, 207 A.D.3d at 883, 172 N.Y.S.3d 195 ).

In light of the invalid appeal waiver, we consider defendant's challenge to his convictions. Defendant argues that his convictions are not supported by legally sufficient evidence and that the verdict is against the weight of the evidence. Specifically,

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defendant contends that the People did not prove that he had the intent to kill the victim and, as a result, there could not have been a conspiracy as he did not share the same mental culpability as Sweet. "When assessing the legal sufficiency of a jury verdict, we view the facts in the light most favorable to the People and examine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt" ( People v. Santiago, 206 A.D.3d 1466, 1467, 171 N.Y.S.3d 616 [3d Dept. 2022] [internal quotation marks and citations omitted]). "In contrast, when undertaking a weight of the evidence review, this Court must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and then, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" ( People v. Colter, 206 A.D.3d 1371, 1373, 170 N.Y.S.3d 665 [3d Dept. 2022] [internal quotation marks, brackets and citations omitted], lv denied 38 N.Y.3d 1149, 174 N.Y.S.3d 44, 194 N.E.3d 751 [2022] ). During our review, "we do not distinguish between direct or circumstantial evidence" ( People v. Terry, 196 A.D.3d 840, 841, 149 N.Y.S.3d 705 [3d Dept. 2021], lv denied 37 N.Y.3d 1030, 153 N.Y.S.3d 432, 175 N.E.3d 457 [2021] ).

As charged here, " ‘a person is guilty of murder in the second degree when, with intent to cause the death of another person, he or she causes the death of such person’ " ( People v. Taylor, 196 A.D.3d 851, 852, 148 N.Y.S.3d 547 [3d Dept. 2021] [brackets and ellipsis omitted], lv denied 37 N.Y.3d 1030, 153 N.Y.S.3d 411, 175 N.E.3d 436 [2021], quoting Penal Law § 125.25[1] ). " ‘A person is guilty of conspiracy in the second degree when, with intent that conduct constituting a class A

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felony be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct’ " ( People v. Chapman, 182 A.D.3d 862, 863–864, 123 N.Y.S.3d 236 [3d Dept. 2020] [brackets omitted], quoting Penal Law § 105.15 ). Since "there is no legal distinction between criminal liability as a principal or as an accessory to a crime" ( People v. Bowes, 206 A.D.3d 1260, 1261, 170 N.Y.S.3d 334 [3d Dept. 2022] [internal quotation marks and citation omitted]), " ‘when one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he or she solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct’ " ( People v. Saunders, 181 A.D.3d 1049, 1050, 120 N.Y.S.3d 658 [3d Dept. 2020] [brackets omitted], quoting Penal Law § 20.00 ).

The evidence at trial revealed that defendant, Sweet, Cockfield and the victim all knew each other prior to the shooting. According to Cockfield, who testified at trial as a condition of his plea bargain, the victim had threatened to harm defendant, Sweet and their children because they had failed to pay a monetary debt that they owed to him. This escalated to the point where the victim was allegedly plotting to lure defendant and Sweet to a specific location to kill them. In the afternoon before the victim was killed, Cockfield testified that Sweet told defendant that they had to shoot the victim and get him before the victim got them. During this conversation, Sweet stated that he had access to guns and he made a plan to retrieve the guns for defendant and himself to use. Defendant borrowed a vehicle from a friend, and Cockfield drove defendant and

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Sweet to a barn. When they got there, defendant and Sweet exited the vehicle and went inside to collect the firearms for the shooting. Cockfield testified that, while he was waiting for them to return, he heard gunshots and saw "sparks in the air." When they returned to the vehicle, Cockfield asked them what the noise was and Sweet responded, "That was a 9[ ]millimeter."

Cockfield further testified that he drove defendant and Sweet to the victim's home, briefly stopping at another location along the way to allow defendant and Sweet to change into all black clothing. When they neared the victim's home, Cockfield parked down the street and stayed inside the vehicle while defendant and Sweet went to the victim's home. Cockfield testified that, after about 20 to 30 minutes, he heard multiple gunshots and, shortly thereafter, defendant and Sweet returned to the vehicle. Cockfield saw a gun tucked into defendant's waistband as he got into the vehicle but did not see a gun on Sweet, who "jumped in" and said, "Drive. Drive. Drive." Sweet then asked,

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"Did you see what I did?" and...