People v. Sweet

• Decision Date: 16 December 2021
• Docket Number: 111100
• Citation: 200 A.D.3d 1315,157 N.Y.S.3d 636
• Parties: The PEOPLE of the State of New York, Respondent, v. Garry L. SWEET, Appellant.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 1315
157 N.Y.S.3d 636

The PEOPLE of the State of New York, Respondent,
v.
Garry L. SWEET, Appellant.

111100

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

Calendar Date: October 14, 2021
Decided and Entered: December 16, 2021

157 N.Y.S.3d 638

Thomas F. Garner, Middleburgh, for appellant.

Lorraine C. Diamond, District Attorney, Fonda (Christina Pearson of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Aarons, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered April 19, 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 the porch of his apartment. In October 2018, defendant, Eric S. Rivera and Aaron Cockfield Jr. were each charged, by a joint indictment, with murder in the second degree and conspiracy in the second degree.¹ Following a jury trial, defendant was convicted as charged. County Court thereafter sentenced him to a prison term of 25 years to life on the murder conviction, and 8 to 25 years on the conspiracy conviction.² Defendant appeals.

157 N.Y.S.3d 639

Defendant contends that his conviction for murder in the second degree is not supported by legally sufficient evidence as the People failed to establish intent. Additionally, he alleges that the verdict on both counts is against the weight of the evidence, as the testimony of his codefendants was not credible, and the People failed to produce physical evidence connecting him to the murder. "[A] legal sufficiency challenge requires this Court to view the evidence in the light most favorable to the People and evaluate 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 crimes charged" People v. Pentalow, 196 A.D.3d 871, 873, 149 N.Y.S.3d 713 [2021] [internal quotation marks, brackets and citations omitted]; see People v. Acosta, 80 N.Y.2d 665, 672, 593 N.Y.S.2d 978, 609 N.E.2d 518 [1993] ). "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 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. McCabe, 182 A.D.3d 772, 773, 122 N.Y.S.3d 757 [2020] [internal quotation marks, brackets and citations omitted]; see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). As relevant here, "[a] person is guilty of murder in the second degree when[,] ... [w]ith intent to cause the death of another person, he [or she] causes the death of such person or of a third person" ( Penal Law § 125.25[1] ). Murder in the second degree is a class A–I felony (see Penal Law § 125.25 ). "A person is guilty of conspiracy in the second degree when, with intent that conduct constituting a class A felony be performed, he [or she] agrees with one or more persons to engage in or cause the performance of such conduct" ( Penal Law § 105.15 ).

At trial, the victim's girlfriend testified that at around 8:00 p.m. on June 29, 2018, the victim left the residence that they shared. The following morning, she discovered him dead outside on the porch lying on his back in a pool of blood. A friend of Rivera testified that she allowed Rivera and defendant to take her vehicle and that defendant told her that they were going to "confront" the victim. Cockfield, who testified at trial as a condition of his plea bargain, stated that, prior to him meeting up with them, defendant and Rivera had formulated a plan to harm the victim, which was, in essence, to "[get the victim] before he [got them]." In addition, defendant specifically stated that they needed to "shoot" the victim. According to Cockfield's testimony, his role in the plan was to be the driver. He testified that he drove defendant and Rivera to a barn, defendant entered the barn and then, after exiting, defendant fired a gun – which Rivera told him was a 9 millimeter – into the air five or six times. Defendant then instructed Cockfield to drive to a warehouse, where defendant and Rivera changed their clothes, and then he drove to the victim's apartment where defendant instructed him to park on a nearby street. Cockfield further testified that he heard multiple gunshots and, shortly thereafter,

157 N.Y.S.3d 640

defendant and Rivera jumped into the car; he saw that Rivera had a gun on his hip. Defendant asked, "Did you see what I did?", to which Rivera responded, "Yeah[,] I was right there."

Defendant's employer, who also testified pursuant to a cooperation agreement with the People, stated that he owned a barn where he kept guns and pistols with ammunition, including a Walther 9 millimeter, that defendant had keys to the barn and that defendant also knew where a spare key was kept. He further testified that about two months after the murder, he and defendant's girlfriend drove together to the intersection of Fox Road and Route 5 in Montgomery County to retrieve the gun, which defendant's girlfriend took to her house. About a month later, defendant's girlfriend contacted defendant's employer requesting that the gun be removed from her home. He and the girlfriend took the gun and drove to Starkville, Herkimer County where they buried what he believed to be his Walther 9 millimeter gun.

Defendant's girlfriend testified, pursuant to a plea deal, that on June 30, 2018, she went to the City of Gloversville, Fulton County to the home of defendant's aunt and uncle for a cookout. During the course of the evening, defendant became aware that he was wanted by the police with regard to the victim's shooting, and he confessed to her that "he did it," specifically stating that "he shot [the victim] in the back of the head." Defendant then explained to her where the gun was and asked her to contact his employer to "get rid of [the gun]." She further testified that she and defendant's employer ultimately retrieved the 9 millimeter gun from Fox Road, she "cleaned it with bleach and ammonia ... [t]o get rid of fingerprints and evidence" and "[took] the clip out of the gun," at which point she "noticed that there was a bullet missing." She wrapped the gun in a towel and, on September 20, 2018, she and defendant's employer buried the gun in Starkville.

Rivera, who also testified for the People in accordance with his plea deal, stated that he borrowed around $150 from the victim for marihuana and explained that he planned to repay the money either directly to the victim or through defendant. As he had not repaid the money to the victim, the victim threatened him on Facebook. On June 29, 2018, Rivera met defendant at a friend's house, and defendant suggested shooting the victim. After Cockfield arrived at the friend's house, he, defendant and Rivera left and drove to a barn. Rivera and defendant entered the barn using defendant's key and defendant took a 9 millimeter gun and a .22 caliber semiautomatic gun, both of which were loaded with ammunition. Once outside the barn, defendant shot the 9 millimeter gun into the air about six times. Rivera and defendant returned to the vehicle and the three of them drove to the victim's house; Cockfield parked the car and Rivera and defendant exited the vehicle with their guns. He went to the victim's home and engaged him in a conversation on the porch. Defendant appeared behind the victim and, as the victim was leaving the porch, defendant "shot him in the back of the head" with the 9 millimeter gun....