United States v. Crocker
| Docket Number | 13-CR-414(SHS) |
| Decision Date | 21 December 2021 |
| Parties | UNITED STATES OF AMERICA, v. MALIK CROCKER, Defendant. |
| Court | U.S. District Court — Southern District of New York |
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On May 29, 2014, Malik Crocker pled guilty to conspiring to distribute and possess with intent to distribute crack cocaine and was subsequently sentenced to 70 months of imprisonment to be followed by four years of supervised release. Although his term of supervised release was originally scheduled to terminate in December of 2022 Crocker successfully participated in this Court's Reentry through Intensive Supervision and Employment (RISE) program As a result, the Court granted Crocker a one-year reduction in his term of supervised release. (ECF No. 764.)
In June of this year, approximately six months before Crocker's term of supervised release was set to expire, the S.D.N.Y Probation Department filed a Petition for a Violation of Supervised Release ("VOSR") pursuant to Fed. R Crim. P. 32.1 alleging that Crocker had violated the terms of his supervised release based on three specifications arising from a shooting on May 16, 2021 as follows: (1) Crocker committed the state crime of criminal possession of a weapon-2nd Degree by possessing a loaded firearm intending to cause physical harm to a victim; (2) Crocker committed the state crime of criminal possession of a weapon-2nd Degree by possessing a loaded firearm; (3) Crocker committed the state crime of reckless endangerment-1st Degree by creating a substantial risk of serious physical injury to another.
The VOSR was later amended to include a fourth specification that on the same date, Crocker committed the federal crime of being a felon in possession of ammunition.
This Court held a lengthy fact hearing on September 20, November 5, and November 9, during which the government presented exhibits and witnesses and Crocker, represented by counsel, cross examined those witnesses.
On May 15, 2021, Crocker was a customer at the Aqua Bar & Grill, located at 2241 Washington Avenue, Bronx, N.Y. He paid for drinks at 11:30 p.m., as evidenced by a credit card receipt containing his first and last name and signature. (GX 205.) Fernando Arturo Estevez, who worked at Aqua Bar, offered credible testimony that GX 205 was a true and accurate Aqua Bar receipt kept in the company's normal course of business. Tr. 127-128.
At the same time as that credit card transaction was made (GX 205), Crocker can be clearly seen on an Aqua Bar surveillance video (GX 2O4B) wearing a distinctive red hat and red jacket. Tr. 233-34.
A second surveillance video (GX 2O4C) shows the defendant socializing with individuals named Ashley Sanchez and Sophia Pinedo at Aqua Bar during the course of that evening. Tr. 234.
Shots were fired outside 155-19 Jewel Avenue, Queens N.Y. in the early morning hours of May 16, 2021. Two shell casings were recovered from the street outside that address that morning. (GX 101.) Body camera footage from N.Y.P.D. Officer Michael Robinson shows police officers locating the two shell casings. (GX 202.) Tr. 38. Photographs GX 103-107 show the location of the recovered shell casings.
Based on the shell casings recovered from the scene (GX 101), the photograph of the shell casing locations (GX 107), and the surveillance video (GX 203) that includes at least one sudden bright muzzle flash indicative of a firearm discharge, the Court concludes that a shooting took place outside of 155-19 Jewel Avenue in the early morning of May 16, 2021 and, as explicated below, that Crocker was the shooter.
Based on the evidence set forth below, the Court concludes that Crocker was the individual who intentionally fired a gun at a grey sedan as shown in the 155-15 Jewel Avenue surveillance video. (GX 203.)
Det. Martin Wicklow arrived at the scene of the shooting at approximately 5:50 a.m. Wicklow testified that he was "directed to the two witnesses [i.e., Ashley Sanchez and Sophia Pinedo] that patrol had stopped, and conducted interviews with both of them." Tr. 52. Sanchez showed Det. Wicklow her phone: GX 215 and GX 216 are accurate photographs of that phone. GX 215 shows an Instagram post from the account "backendbread" including a photograph in which Crocker is wearing a red baseball hat with an "A" letter in front, a distinctive red jacket, white shirt, blue jeans, and white shoes. GX 216 shows an Instagram post from the same account that is also a photograph of Malik Crocker.
Det. Oswaldo Rivera also had interviewed Ashley Sanchez and Sofia Pinedo that morning. Tr. 90. He testified that while interviewing Ashley Sanchez, she showed him an Instagram account of "backendbread", and in his presence, took screenshots of that account and sent them to Rivera. Tr. 99-100 (referencing GX 208, GX 209, GX 210, GX 211, and GX 212). Rivera further testified that the individual in each Instagram photo was Malik Crocker. Tr. 142. He identified Crocker in the courtroom, Tr. 142, and upon watching surveillance footage of the Aqua Bar & Grill (GX 2O4A), Rivera identified Crocker as the individual in the red hat and red jacket sitting next to Sanchez. Tr. 146-47. In the same Aqua Bar footage, Rivera also identified Pinedo. Tr. 150. Last, Rivera noted that in the Aqua Bar video, Crocker was holding a receipt and that the manager of the Aqua Bar had provided that receipt to Rivera. See GX 205; Tr. 152.
In addition, during Crocker's post-arrest statement to Rivera (GX 206), Rivera showed Crocker the photograph of Crocker that is in GX 214. Rivera testified that GX 214 was a print out of "a screenshot of the ... Instagram photo that was provided to me by Ashley Sanchez" and that Crocker had initialed it during Rivera's interview of Crocker to indicate that it was a photograph of him. Tr. 160.
The Court has reviewed the surveillance footage of the shooting (GX 203) several times, both before and during the hearing and concludes Malik Crocker is the individual who discharged the firearm at the sedan. Crocker is readily identifiable in the video of the shooting because he wore the same distinctive red jacket, white shirt, red baseball hat, and white shoes that he was wearing just hours before at the Aqua Bar & Grill. (GX 208; GX 214.) Crocker can be seen in the video (GX 203) - which has no sound-raising his right arm in a manner consistent with tiring a weapon and a muzzle flash is seen at least once.
Taken together, the evidence described above demonstrates beyond a preponderance of the evidence that Crocker shot two bullets on the early morning of May 16, 2021 at a grey sedan that was driving away from 155-19 Jewel Avenue.
As noted above, in 2014, Crocker pled guilty to conspiring to distribute and possess with intent to distribute crack cocaine in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(b)(1)(B) and subsequently served a term of 70 months of imprisonment. (ECF No. 570.) He manifestly was aware he had been convicted of a felony.
The Court finds that the casings recovered at the scene of the shooting were part of ammunition that had traveled in and affected interstate commerce prior to May 16, 2021. The GX SI stipulation provided that if called to testify, a ballistics expert from the Bureau of Alcohol Tobacco Firearms and Explosives would have testified that "the casings were manufactured outside of New York state and traveled in interstate commerce as across the state line at some point prior to May 16, 2021." Tr. 40-42. The Court accepts the terms of that stipulation.
Throughout the evidentiary hearing, the government sought admission of statements made to N.Y.P.D. officers on the morning of the shooting by Ashley Sanchez and Sophia Pinedo, each of whom had witnessed the shooting. Neither testified at the hearing and defense counsel consistently objected to the admission of their statements on the grounds that such statements were hearsay and that Crocker had a right to cross-examine any adverse witnesses. See Fed. R. Crim. P. 32.1(b)(2)(C).
There is no need for the Court to resolve that issue of law, however, because for purposes of these findings of fact and conclusions of law, the Court has not considered any statements made by Ashley Sanchez or Sofia Pinedo.
The Court now considers whether the government has met its burden of showing by a preponderance of evidence that Malik Crocker engaged in each of the four specifications charged.
"A person is guilty of criminal possession of a weapon in the second degree when: (1) with intent to use the same unlawfully against another, such person: .. . (b) possesses a loaded firearm." See N.Y. Penal Law § 265.O3(1)(b). Accordingly, the government needs to prove the following elements:
The Court has already...
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