People v. Shabazz
| Decision Date | 01 December 2022 |
| Docket Number | 110654, 113175 |
| Citation | 178 N.Y.S.3d 820 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Malik SHABAZZ, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Paul J. Connolly, Delmar, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Before: Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and Ceresia, JJ.
Clark, J. Appeals (1) from a judgment of the County Court of Albany County (Peter A. Lynch, J.), rendered July 11, 2018, upon a verdict convicting defendant of the crimes of robbery in the first degree (two counts), robbery in the second degree and burglary in the first degree (two counts), (2) from a judgment of said court, rendered September 28, 2018, which resentenced defendant, and (3) by permission, from an order of the Supreme Court (Roger D. McDonough, J.), entered October 20, 2021 in Albany County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
On January 17, 2017, three men forcibly entered the apartment of victim A and his girlfriend, victim B. According to the victims, one of the men held them at gunpoint while the other two searched the apartment. After a few minutes, the three men escaped with a few hundred dollars and some collectible coins and bills that were out of circulation. The victims later identified defendant as one of the perpetrators and, following a trial, defendant was convicted of two counts of robbery in the first degree, robbery in the second degree and two counts of burglary in the first degree. County Court denied defendant's motion to set aside the verdict and sentenced him, as a second felony offender, to the maximum term of imprisonment for each of his convictions, to be served concurrently, totaling 25 years in prison to be followed by five years of postrelease supervision. After the original sentence imposed on one of the convictions for burglary in the first degree was discovered to be illegal, the court resentenced defendant on that charge to a concurrent term of 25 years in prison to be followed by five years of postrelease supervision. Supreme Court thereafter denied defendant's CPL 440.10 motion without a hearing. Defendant appeals from the judgments of conviction and, by permission, from the order denying his CPL 440.10 motion.
Defendant contends that the verdict is based on evidence that is legally insufficient and the verdict is against the weight of the evidence because the People did not establish his identity as one of the perpetrators. Initially, because defendant failed to renew his motion for a trial order of dismissal following the close of all proof, his challenge to the sufficiency of the evidence is unpreserved (see People v. Roberts, 203 A.D.3d 1465, 1466, 164 N.Y.S.3d 737 [3d Dept. 2022] ; People v. Mesko, 150 A.D.3d 1412, 1412, 55 N.Y.S.3d 748 [3d Dept. 2017], lv denied 29 N.Y.3d 1131, 64 N.Y.S.3d 681, 86 N.E.3d 573 [2017] ). "Nevertheless, in the course of reviewing [a] defendant's challenge that the verdict as to all counts is against the weight of the evidence, we necessarily evaluate whether all elements of the charged crimes were proven beyond a reasonable doubt" ( People v. Stover, 178 A.D.3d 1138, 1139 n 1, 115 N.Y.S.3d 500 [3d Dept. 2019] [internal quotation marks and citation omitted], lv denied 34 N.Y.3d 1163, 120 N.Y.S.3d 249, 142 N.E.3d 1151 [2020] ; see People v. Race, 78 A.D.3d 1217, 1219, 910 N.Y.S.2d 271 [3d Dept. 2010], lv denied 16 N.Y.3d 835, 921 N.Y.S.2d 199, 946 N.E.2d 187 [2011] ). "In conducting a weight of the evidence review, we must view the evidence in a neutral light and determine first whether a different verdict 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 testimony to determine if the verdict is supported by the weight of the evidence" ( People v. Barzee, 190 A.D.3d 1016, 1017–1018, 138 N.Y.S.3d 718 [3d Dept. 2021] [internal quotation marks and citations omitted], lv denied 36 N.Y.3d 1094, 144 N.Y.S.3d 110, 167 N.E.3d 1245 [2021] ; see People v. Martinez, 166 A.D.3d 1292, 1293, 88 N.Y.S.3d 665 [3d Dept. 2018], lv denied 32 N.Y.3d 1207, 99 N.Y.S.3d 208, 122 N.E.3d 1121 [2019] ).
As relevant here, "[a] person is guilty of robbery in the first degree when he [or she] forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he [or she] or another participant in the crime ... [i]s armed with a deadly weapon" or "[d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm" ( Penal Law § 160.15[2], [4] ). "A person is guilty of robbery in the second degree when he [or she] forcibly steals property and ... is aided by another person actually present" ( Penal Law § 160.10[1] ). "A person is guilty of burglary in the first degree when he [or she] knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein, and when, in effecting entry or while in the dwelling or in immediate flight therefrom, he [or she] or another participant in the crime ... [i]s armed with ... a deadly weapon" or "[d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm" ( Penal Law § 140.30[1], [4] ). "Finally, as an implicit but necessary element of each and every crime, the People must prove beyond a reasonable doubt the identity of the defendant as the person who committed the crime" ( People v. Taylor, 196 A.D.3d 851, 853, 148 N.Y.S.3d 547 [3d Dept. 2021] [], lv denied 37 N.Y.3d 1030, 153 N.Y.S.3d 411, 175 N.E.3d 436 [2021] ; see People v. Davis, 200 A.D.3d 1200, 1201, 157 N.Y.S.3d 580 [3d Dept. 2021] ; People v. Green, 194 A.D.3d 1106, 1108, 146 N.Y.S.3d 360 [3d Dept. 2021] ).
Victim A testified that on January 17, 2017, he arrived home from work between 4:30 p.m. and 5:00 p.m. and smoked some marihuana, as he did daily. According to victim A, victim B arrived around 7:00 p.m. After eating dinner together, the two watched television until around 10:00 p.m., when victim A went to bed while victim B stayed up. According to victim A, victim B woke him up screaming that someone was trying to get into the home, causing him to jump out of bed and approach the front door. Victim A approached the door, and both victims said that they heard someone yell "police" from the other side of the door. As victim A began to open the door, three men forced their way through the doorway, and the first man pistol-whipped victim A on the head. According to both victims, the first man brandished a weapon and wore a mask covering his face; the second man carried no gun and wore a hooded sweatshirt with the hood tightened such that only his eyes and the top of his nose were visible; and the third man carried a revolver and wore a hooded jacket with the hood sitting on his head, leaving his face uncovered.
As the three men entered the apartment, they directed both victims to get on the ground. Victim A positioned himself between victim B and the third man, who kept his gun aimed at victim B. While the third man held the victims at gunpoint, the masked man and the hooded man ransacked the apartment. During this time, both victims observed a neighbor peek through the front door but signaled the neighbor to leave to avoid putting him in danger. The neighbor, who did not get a good look at the perpetrators, returned to his apartment and his wife called the police.
Victim A asserted that as the hood around the hooded man's face began to loosen, he recognized him as Luis DeJesus. Victim A worked with DeJesus's brother, and he met DeJesus a few months before the break-in. Victim A, who admitted to having a criminal record, explained that in the weeks leading up to January 17, 2017, he had sold marihuana to DeJesus three or four times, and during each of those times, the two smoked marihuana together. As a result of those interactions, victim A had obtained DeJesus's phone number.
Victim A stated that although the three men were presumably looking for marihuana, they only found and took a few hundred dollars in cash as well as some collectible currency in the form of antique coins (some of which were kept in a red Ziploc bag) and misprinted bills before escaping. Victim A attempted to follow the men but thought better of it when the masked man shot in his direction. Soon after victim A returned to the apartment, police arrived on the scene. Victim A provided Timothy Haggerty, a detective with the Albany Police Department, DeJesus's name, phone number and a photograph from DeJesus's Facebook page. After the police left, victim A went to the hospital to get his head injury assessed. According to victim A, a few days later, victim B found defendant's picture through DeJesus's Facebook page, and they both identified him as the unmasked man who broke into their apartment. Victim A also testified that, several weeks later, Haggerty and his partner presented him with a photo array, through which he identified defendant as the unmasked man.
Victim B testified that she got a very good look at the unmasked man's face during the incident. She explained that, as he pointed a gun at her, she maintained eye contact with him in an attempt to appeal to his humanity. Victim B stated that, in the days following the break-in, she began looking through Facebook and multiple pages that depicted DeJesus. A few days later, she came across defendant's profile picture and recognized him as the unmasked man. Victim B took a screenshot of the profile picture, which image was admitted into evidence at trial and showed that it was taken on January 22, 2017. Victim B asserted that she shared this information with the police...
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