The People v. Darius Dubarry ( 2015 )

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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 32
The People &c.,
Respondent,
v.
Darius Dubarry,
Appellant.
Denise A. Corsi, for appellant.
Thomas M. Ross, for respondent.
RIVERA, J.:
This appeal presents the novel question of whether
defendant may be subject to multiple liability for a single
homicide under a "transferred intent" theory, where defendant
kills one victim in the course of attempting to kill someone
else. We conclude that defendant cannot be convicted of depraved
indifference murder and intentional murder on a transferred
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intent theory in a case involving the death of the same person.
Therefore, the trial court erroneously submitted to the jury both
charges in the conjunctive rather than in the alternative. We
also hold that admission into evidence of certain grand jury
statements of a non-testifying witness violated defendant's Sixth
Amendment right to confrontation. The Appellate Division order
should be modified, and a new trial ordered on the intentional
murder, depraved indifference murder, and attempted murder
counts.
I.
The underlying criminal prosecution of defendant
Darius Dubarry stems from the fatal shooting of a bystander
during a gun fight between defendant and co-defendant Herburtho
Benjamin. At trial, defendant admitted shooting at Benjamin, but
claimed Benjamin was the aggressor and that defendant acted in
self defense.
According to the testimony presented by the People,
Benjamin and approximately ten men went to a residential building
in Brooklyn, New York, looking for someone who had previously
assaulted one of the men. While they were standing inside the
lobby they saw defendant walk down the staircase. Defendant, a
member of the Lek Lekah Israelites, had just left Sabbath
services when he, in turn, saw the men. After defendant walked
by, someone in the group said, "That's him." Benjamin and the
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others then followed defendant outside, and dispersed on the
street.
Several of the men in the group testified that once
outside they saw defendant in front of the building, and observed
defendant and Benjamin pull out guns and shoot at one another.
The People also submitted video tape footage from the building
depicting the shootout and defendant extending his arm to fire a
gun before he reentered the building. The forensic evidence
established that one of the bullets fired by defendant fatally
struck the victim, who was uninvolved in the events and
innocently standing a few buildings away from the shooting.
Soon after the shooting, defendant left the scene, and
approximately a week later the investigating detectives located
him listed under an assumed name in a hotel in Georgia.
Defendant was taken to a local Sheriff's Office where he waived
his Miranda rights and provided oral and written statements to
the New York detectives. In these statements defendant explained
that on the day of the shooting he was leaving services when he
saw several men in the lobby. The men then followed him outside
where he was confronted by Benjamin who pointed a gun at him.
Defendant claimed he heard a click, and then a shot. Defendant
then shot back at Benjamin and ran into the building.
In addition to this evidence, the People sought to
present eyewitness testimony of one of the building's residents
who had previously testified before the grand jury that he saw
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defendant fire the initial shot at Benjamin. However, during the
course of the trial the witness refused to testify because of
threats against his family. Outside of the jury's presence the
court held a Sirois hearing to determine whether defendant
procured the witness's refusal by threats or violence.1
At the hearing, the witness recounted how just the day
before, his brother and sister visited him and told him that they
were "getting hostility around the neighborhood" because he "was
making a statement against the defendants." Specifically, his
brother told him that the Israelites thought the witness was a
"snitch". His sister similarly informed him that someone had
told her that the Israelites suspected the witness of snitching
and that the Israelites were "serious." The witness stated that
his siblings' demeanor during the visit indicated to him that
these were indeed threats.
The witness further informed the court that he was
fearful because his family still lived in the neighborhood where
the shooting occurred, and he thought his brother and sister
would be hurt if he testified. He also said that he had not told
anyone that he had cooperated and he did not even know until that
1
At a Sirois hearing, named after the defendant in the
criminal case considered in Matter of Holtzman v Hellenbrand (92
AD2d 405 [2d Dept 1983]), People v Sirois, the court determines
whether the People have established that defendant's misconduct
induced a witness's unlawful refusal to testify. Where the
People meet their burden, the defendant is "deemed to have waived
any objection to the admissibility of the witness' prior Grand
Jury testimony" (Matter of Holtzman, 92 AD2d at 415).
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day that the People intended to call him at trial. In response to
the court's question, the witness, who was incarcerated in a
federal detention center on an unrelated matter, claimed that
even if held in contempt, and additional time was added to his
sentence, he would not testify against defendant.
Based on this testimony the court concluded that "these
threats have been made, that the witness believes that if he does
testify concerning the events... his family is in harm's way and
that his refusal to testify is based upon these threats and these
threats solely." The court also determined that it could not
compel the witness to testify because he was serving a federal
sentence. The court then recalled the jurors, and over
defendant's objection, allowed the prosecutor to read the
witness's grand jury testimony into evidence.
According to that testimony, on the day of the shooting
the witness looked out the window of his fifth floor apartment
and saw defendant and a group of people walk out of the building.
He saw defendant start smoking a cigarette, walk down two steps
and then start shooting. The witness stepped back from the
window. A few minutes later he again looked out, and this time
observed defendant exit the building with one of the Israelites,
and then enter a car and drive away. The witness stated that he
had seen defendant every week in the building and recognized him
as someone who attended the Israelites' services.
Defendant testified on his own behalf, and claimed that
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Benjamin shot first and for no apparent reason. He explained
that he had come into possession of the gun that he used to shoot
at Benjamin from a male member of the Israelites' congregation.
He stated that on the day of the shooting he was escorting
several female members from the services when this member told
defendant he was going to handle a problem and showed defendant
the gun. Defendant told him to "chill out," took the gun, and
said that they would dispose of it when defendant returned from
escorting the women out of the building.
Once downstairs defendant saw the men in the lobby and
recognized one of them as a resident from the building. He
claimed that he was in front of the building smoking a cigarette
when the men followed him outside, and as he turned to reenter
the building he heard someone say "Move. Move. Move." When he
turned around again he saw Benjamin pointing a gun at him. He
claimed he did not know Benjamin and that he froze when he saw
the gun. According to defendant, Benjamin pulled the trigger
twice, but the gun failed to fire. When Benjamin fired again
defendant fired several shots back.
Defendant further testified that he had never handled a
gun before the shooting, and did not know what he did with it
afterwards. Defendant described how after the gunfight he
returned to the apartment where services had been held, and
stayed there until he subsequently drove away. Two days later he
went to Georgia, out of fear of Benjamin and others in the group
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who defendant believed were gang members, and so his family would
have time to retain counsel. He further claimed that the
statements made to the detective in Georgia were coerced.
As relevant to this appeal, at the pre-charge
conference and later during discussion of the verdict sheet, the
trial court stated that the intentional murder and depraved
indifference murder were separate crimes and that the jury had to
consider both. Defense counsel also argued during the pre-charge
conference that the evidence was insufficient to establish
depraved indifference murder based on defendant engaging in
mutual combat with Benjamin.
The Court thereafter submitted to the jury in the
conjunctive depraved indifference murder and intentional murder
on a transferred intent theory. In other words, the court
instructed the jury to consider depraved indifference murder and,
irrespective of its verdict on that count, to then consider
intentional murder. Also, the court's instructions on depraved
indifference murder required the jury to find, beyond a
reasonable doubt, that defendant and Benjamin engaged in mutual
combat. The court charged as lesser included offenses to the
murder counts first and second degree manslaughter. The court
also charged the jury on attempted murder in the second degree,
assault in the first degree, and criminal possession of a weapon
in the second degree. The court charged the defense of
justification with respect to intentional murder in the second
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degree, manslaughter in the first degree, attempted murder in the
second degree, and attempted assault in the first degree.
The jury returned guilty verdicts on depraved
indifference murder (Penal Law § 125.25 [2]), intentional murder
on a transferred intent theory (Penal Law § 125.25 [1]),
attempted murder in the second degree (Penal Law §§ 110.00,
125.25 [1]), and criminal possession of a weapon in the second
degree (Penal Law § 265.03 [1] [b]). Defendant appealed.
The Appellate Division affirmed (People v Dubarry, 107
AD3d 822 [2d Dept 2013]). The court found the case involved more
than one potential victim, thus permitting defendant's
convictions on the murder counts based on defendant's different
states of mind as regards to each victim. The Appellate Division
further concluded the trial court properly admitted the
unavailable witness's grand jury testimony because the People
established by clear and convincing evidence that the witness's
unavailability was procured by defendant's misconduct. The court
rejected the remainder of defendant's claims. A Judge of this
Court granted leave to appeal (22 NY3d 1040).
II.
Defendant claims the trial court violated his due
process rights when it submitted to the jury depraved
indifference murder and intentional murder on a transferred
intent theory in the conjunctive with respect to the same victim.
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He contends that where the actual and intended victims are
different, conviction on both murder counts unlawfully subjects
him to multiple criminal liability for a single homicide. The
People respond that the convictions should be affirmed because
each murder count requires its own particular culpable mental
state and outcome.
As a threshold matter, we reject the People's argument
that defendant's challenge to the jury instructions is
unpreserved. The record establishes that the trial court
considered depraved indifference and intentional murder as
separate crimes that the jury must independently consider.
During the charge conference the trial court stated that there is
a "distinct difference in the crimes." Later, in response to
defendant's concerns as to whether the verdict sheet should
direct the jury to consider depraved indifference murder if it
found defendant guilty of intentional murder, the court
responded, "I think they have to. It's a totally different
separate element." These statements, and the court's eventual
submission of the counts in the conjunctive establish the court's
rejection of alternative charges. Thus, defendant's claim is
properly before us on this appeal (CPL 470.05; see People v
Prado, 4 NY3d 725, 726 [2004]).
On the merits, we agree with defendant that, on the
facts of this case, the transferred intent theory cannot be
employed to convict him twice for the murder of the same victim.
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We reach this conclusion based on our reading of the Criminal
Procedure Law and the Penal Law, our case law, and the stated
purpose of the transferred intent theory.
We begin our analysis with People v Gallagher, wherein
the Court held that in single homicide cases, intentional and
depraved murder counts must be submitted to the jury in the
alternative (People v Gallagher, 69 NY2d 525 [1987]). In
Gallagher, the trial court denied defense counsel's request to
charge intentional murder and depraved mind murder in the
alternative2 (id. at 528 [1987]). The Court concluded that was
error, holding these counts inconsistent within the meaning of
CPL 300.30(5), "because guilt of one necessarily negates guilt of
the other" (id. at 529). As the Court recognized, a finding of
intentional murder is inconsistent with a finding that the
defendant "unintentionally kill[ed] [the] same victim under
circumstances evincing a depraved indifference to human life"
(id., at 530). Logically, "[t]he act is either intended or not
intended; it cannot simultaneously be both" (id.; see also People
v Robinson, 75 NY2d 879 [1990]).
This appeal presents the question whether a defendant
may be convicted for both depraved indifference murder and
2
Prior to 1998, we referred to murder under Penal Law §
125.25 (2) as depraved mind murder. We have since generally
referred to murder under this section as depraved indifference
murder, without any legal significance attached to the different
nomenclature adopted by the Court.
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intentional murder based on the theory of transferred intent, as
charged in the conjunctive, when the defendant kills one person
while intending to kill another. The Appellate Division is
divided on this issue. On the one hand the Third Department in
People v Molina (79 AD3d 1371 [3d Dept 2010]), held that a
defendant may be found guilty of either intentional murder under
the doctrine of "transferred intent," or depraved indifference
murder for shooting at an intended victim and killing a
bystander. Otherwise, a charge in the conjunctive "impermissibly
takes the issue of determining mens rea out of the jury's hands"
and multiplies liability (Molina, 79 AD3d at 1374).
In contrast the Fourth Department concluded in People v
Henderson (78 AD3d 1506 [4th Dept 2010]), that "defendant may be
convicted of both [intentional and depraved indifference crimes]
because [defendant] may have possessed different states of mind
with regard to different potential victims" (id. at 1507).
Similarly, the Second Department in People v Douglas (73 AD3d 30
[2d Dept 2010]), concluded the rule that a defendant cannot be
guilty of intentional and reckless assault for the same
individual does not apply where the defendant lacks an intent to
injure the victim, but the crime is deemed intentional by
operation of law under a theory of transferred intent. The First
Department in People v Monserate (256 AD2d 15 [1st Dept 1998]),
upheld the submission of intentional murder and depraved
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indifference murder in the conjunctive for the death of a
bystander, shot in a gun battle, because by acting intentionally
as to his intended victim, defendant caused the death of the
bystander with transferred intent, and with depraved
indifference. As these decisions show, resolution of this issue
depends on the proper interpretation of what constitutes the
defendant's act and state of mind. That, of course, requires an
understanding of the terms and purpose of the transferred intent
theory.
The transferred intent theory, codified under Penal Law
§ 125.25 (1), provides that "where the resulting death is of a
third person who was not the defendant's intended victim, the
defendant may nonetheless be held to the same level of criminal
liability as if the intended victim were killed" (People v
Fernandez, 88 NY2d 777, 781 [1996]). This theory of intent is
founded on a legal fiction, whereby once the state of mind is
established the identity of the victim is irrelevant (Fernandez,
88 NY2d at 781). The theory is deployed in order to permit a
jury to find defendant guilty of intentional murder, even though
technically lacking an intentional state of mind with respect to
the actual victim (Fernandez, 88 NY2d at 781).
The purpose of the transferred intent theory is "to
ensure that a person will be prosecuted for the crime [that
person] intended to commit even when, because of bad aim or some
other 'lucky mistake,' the intended target was not the actual
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victim" (Fernandez, 88 NY2d at 781, citing People v Birreuta, 162
Cal App 3d 454, 459 [Cal Ct App 1984]). Given this stated goal,
the Court has cautioned that transferred intent "should not be
employed to 'multiply criminal liability, but to prevent a
defendant who has committed all the elements of a crime (albeit
not upon the same victim) from escaping responsibility for that
crime" (Fernandez, 88 NY2d at 782, citing Ford v State, 330 Md
682, 711 [1993]). Hence, it should be applied where a defendant
"could not be convicted of the crime because the mental and
physical elements do not concur as to either the intended or
actual victim" (Fernandez, 88 NY2d at 782, citing Ford, 330 Md at
711).
With this understanding, we conclude that this Court's
prior analysis in Gallagher applies with equal force when the
People proceed on a transferred intent theory. Whether based on
the defendant's conscious objective towards the intended victim,
or on a transferred intent theory directed at a different, and
actual, victim, defendant's conviction depends on a jury finding
that defendant harbored the requisite intentional mental state.
Defendant cannot then also be guilty of the same murder premised
on a depraved state of mind.
That the People had at their disposal two bases by
which to establish the requisite state of mind -- transferred
intent and depraved indifference -- does not permit the People to
seek multiple convictions for the one murder for which the
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defendant was charged, prosecuted and tried. To hold otherwise
is contrary to "the basic principle that a defendant should not
be convicted and punished more than once for conduct which,
although constituting only one prohibited act, may because of
statutory definition, be theorized as constituting separate
criminal acts" (People v Perez, 45 NY2d 204, 208 [1978]). Under
New York law, defendant is held accountable for the murder he
committed, even if it was not the one he set out to complete
(Penal Law 125.25 [1]).
Moreover, defendant's state of mind is a matter for the
jury (see Gallagher, 69 NY2d at 530), and as we have held
depraved indifference is a culpable mens rea, distinct from the
mens rea required for intentional murder (People v Feingold, 7
NY3d 288, 294 [2006]). Permitting conjunctive charges of
depraved indifference and intentional murder based on transferred
intent absolves the jury of rendering a verdict based on a proper
determination of the defendant's state of mind.
The People's main argument in support of the jury
charge and defendant's conviction is that the counts are based on
different states of minds and outcomes. According to the People,
there is no multiple liability on the facts of this case because
the conviction for intentional murder required establishing
beyond a reasonable doubt defendant's intent to cause the death
of Benjamin. Whereas, the conviction for depraved indifference
murder required establishing beyond a reasonable doubt
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defendant's recklessness with respect to the creation of a grave
risk of death of the victim under circumstances evincing a
depraved indifference to human life, resulting in the victim's
death.
The People contend that the existence of two outcomes,
related to two different individuals, distinguishes this case
from Gallagher, and instead, places it squarely within the line
of analysis adopted in People v Trappier. In Trappier, the Court
affirmed a defendant's conviction of attempted first-degree
assault and first-degree reckless endangerment for firing three
shots in the direction of his intended victim, reasoning that the
defendant could have "intend[ed] one result -- serious physical
injury -- while recklessly creating a grave risk that a
different, more serious result -- death -- would [have] ensue[d]
from his actions" (People v Trappier, 87 NY2d 55, 57 [1995]).
The Trappier Court affirmed the principle that the separate mens
rea of intent and recklessness "are not mutually exclusive when
applied to different outcomes" (People v Trappier, 87 NY2d 55, 57
[1995]).
The fundamental error of the People's argument, as
illustrated by their misplaced reliance on Trappier, is that
while there are two distinct states of mind attendant to the
murder counts, there is but one outcome in defendant's case: the
death of the victim. The People seek to escape this conclusion
by avoiding the analytic components of the transferred intent
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theory. The first step is to establish an intentional conscious
objective to cause the death of another. The second step is to
establish that the act of shooting resulted in a death. Thus,
the legally significant question is whether the People have
established the intent to kill, because "the identity of the
victim is irrelevant" (Fernandez, 88 NY2d at 781). By focusing
on the intended victim rather than on the outcome that a murder
was committed, the People ignore the essence of intentional
murder based on transferred intent. Here, unlike in Trappier, we
address the application of the separate mens rea of intent and
depraved indifference to the same outcome, a bystander's death,
and hold that the two are mutually exclusive, even where the
former is premised on the doctrine of transferred intent.
We conclude, therefore, that defendant could not be
convicted of both intentional and depraved indifference murder,
and that a new trial should be ordered on these counts.
III.
Defendant argues that the trial court violated his
federal Sixth Amendment right to confrontation by admitting the
unavailable witness's grand jury testimony because the People
failed to present evidence that linked defendant to the alleged
threats against the witness's family members. Defendant further
argues that the error is not harmless because it bolstered
evidence that defendant was the aggressor, thus undermining
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defendant's justification defense. In response, the People
contend that admission of the witness's grand jury testimony was
proper because the evidence showed that the threats came from
defendant's group, the Israelites, and that only the defense had
knowledge the witness was scheduled to testify. Therefore, the
evidence sufficiently linked defendant to the threats. In any
event, the People contend the error was harmless because other
evidence established defendant as the person who fired the first
shot.
We are unpersuaded by the People's arguments and
conclude that this evidence was insufficient to establish
defendant's misconduct. Moreover, admission of the grand jury
testimony was constitutional error that, on the facts of this
case, cannot be construed as harmless.
Defendant has a federal constitutional right to
confront the witnesses against him (US Const Amend VI; Crawford v
Washington, 541 U.S. 36 [2004]). "As a general rule, the Grand Jury
testimony of an unavailable witness is inadmissable as
evidence-in-chief" (People v Geraci, 85 NY2d 359, 365 [1995] see
also CPL § 670.20). However, a limited exception to this
prohibition, and to the prohibition against the admission of
hearsay, applies where the People establish by clear and
convincing evidence that "the unavailability was procured by
misconduct on the part of the defendant" (id. at 366 [1995]).
Where the People establish that a witness is unwilling to testify
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due to the defendant's own conduct, or by the actions of others
"with the defendant's knowing acquiescence," defendant forfeits
the right to confrontation, and such out-of-court statements are
admissible (Geraci, 85 NY2d at 366). This exception is based on
"the public policy of reducing the incentive to tamper with
witnesses" (id. at 367-68).
Here, the court determined that the witness's
unwillingness to testify was due solely to the defendant, but the
witness's testimony and the People's representations at the
Sirois hearing provide no basis for this conclusion. As the
record shows, the witness identified "the Israelites" as the
source of the threats to his family, but provided no evidence
linking defendant to the threats or anyone who approached his
siblings. On the contrary, the witness was unable to say when or
where the threats were made. He could not describe who spoke to
his brother, or how often and under what circumstances his
brother was approached. With respect to his sister, the witness
never testified that she was personally approached and
threatened. Rather, he testified that she heard from someone
that the Israelites believed the witness was snitching.
Furthermore, the siblings never told the witness that they feared
defendant, or that defendant encouraged the Israelites'
suspicions about the witness. Thus, the witness provided no
information about any misconduct by defendant, nor did he provide
any facts which support an inference that defendant planned or
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engineered the threats.
Notably, the People failed to submit evidence that
defendant communicated with anyone about the witness and his
possible testimony, or that defendant "had the opportunity to
arrange and orchestrate" any threats against the witness's family
(People v Cotto, 92 NY2d 68, 77 [1998]). Instead, the People
promoted the inference that because they informed the defendants
that the witness was going to testify, and the witness himself
did not tell anyone that he was cooperating in the case,
defendant must have been the source of the Isrealites's
suspicions about the witness. Even if the inference of a
communication were appropriate on this record, the additional
inference that the communication was necessarily intended and
structured to procure the witness's unavailability is based on
nothing more than pure speculation.
We disagree with our dissenting colleagues that in this
case a bare, alleged communication revealing the identity of a
witness, without some evidence of misconduct, provides a causal
link between defendant and the witness's unwillingness to testify
(Dis Op at 6). Assuming defendant told someone that the witness
was going to testify for the People, that alone does not
constitute witness tampering or coercive behavior. In order to
infer the misconduct required by our case law, there must be some
analytic basis to trace the threats back to defendant (see People
v Smart, 23 NY3d 213, 220 [2014][the "People must demonstrate by
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clear and convincing evidence that the defendant engaged in
misconduct aimed at least in part at preventing the witness from
testifying and that (defendant's) misdeeds were a significant
cause of the witness's decision not to testify"], citing Geraci,
85 NY2d at 366-368, and People v Maher, 89 NY2d 456, 462 [1997]).
Here, the only possible connection between defendant
and the source of the threats is defendant's association with the
Israelite congregation. Yet, more than membership is necessary
to establish clear and convincing evidence of misconduct, and in
this case the record lacks any facts from which to infer
defendant is behind the Israelites' threats. For example, there
is no evidence that defendant controlled the group's actions,
influenced members of the group to act, or that he persuaded any
individual Israelite to threaten the witness's family (see People
v Smart, 23 NY3d 213, 221 n 3 [2014]; Maher, 89 NY2d at 461;
Geraci, 85 NY2d at 366).
Unlike other cases where the defendant personally seeks
to threaten a witness or directs others to do so at the
defendant's behest, or where a defendant knowingly acquiesces,
here there is no similar evidence linking defendant to the
threats (see e.g. Smart, 23 NY3d at 221 [evidence sufficient
where recorded telephone conversations revealed that defendant
threatened the witness "with violence in response to [the
witness's] avowed willingness to testify and encourag[ed] [the
witness to disappear]," and further enlisted his mother to aid in
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preventing the witness from testifying, all in furtherance of
ensuring the witness's unavailability]).
While it is possible for the People to satisfy their
burden without direct evidence of the defendant's attempts to
dissuade the witness from testifying, there must be more than the
conjecture relied upon by the People in defendant's case.
Notwithstanding our dissenting colleagues' argument to the
contrary, we do not adopt a new standard. Indeed, we still
adhere to a "flexible approach" to the admission of a witness's
grand jury testimony that accounts for the reality that the
People can rarely discover direct evidence of a defendant's role
in making a witness unavailable, and we follow a "pragmatic
framework" of inferential reasoning that "rel[ies] heavily on
circumstantial evidence and the sequence of events" (Smart, 23
NY3d at 224, citing People v Encarnacion, 87 Ad3d 81, 85-89 [1st
Dept 2011], and People v Clark, 55 AD3d 1447, 1448 [4th Dept
2008], lv denied 11 NY3d 923 [2009]). We thus adhere to our
longstanding requirement that the People present legally
sufficient evidence of circumstances and events from which a
court may properly infer that the defendant, or those at
defendant's direction or acting with defendant's knowing
acquiescence, threatened the witness (see Smart, 23 NY3d at 221 n
3; Maher, 89 NY2d at 461; Geraci, 85 NY2d at 366).
As the Court said in Geraci, the standard of proof
imposed on the People in these cases is intended to be "high
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enough to assure a great degree of accuracy in the determination
of whether the defendant was, in fact, involved in procuring the
witness's unavailability for live testimony" (Geraci, 85 NY2d at
368). Here, the People relied on a speculative inference that
defendant's association with the Israelites established his
involvement in the threats to the witness's family, and in so
doing failed to meet their heavy burden.
The constitutional error in admitting the unavailable
witness's grand jury testimony requires reversal unless that
error was harmless beyond a reasonable doubt, or in other words,
"'there is no reasonable possibility that the error might have
contributed to defendant's conviction'" (People v Smith, 97 NY2d
324, 330 [2002], citing People v Crimmins, 36 NY2d 230, 237
[1975]; see also Maher, 89 NY2d at 462). Here, the witness's
testimony that defendant fired the first shot directly
contradicted defendant's testimony that he shot at Benjamin only
after Benjamin shot at him. Thus, the witness's testimony had an
irrefutable damaging effect on defendant's justification defense.
The People contend that others provided testimony
establishing defendant as the initial shooter. The People rely
on the testimony of A.M. and D.S., two of the men who went with
Benjamin looking for defendant, and H.G., a resident in a
building nearby who viewed the events from his window. However,
their testimony failed to establish defendant as the first to
shoot.
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Only A.M. testified that he saw defendant point a gun
and heard defendant fire it, while observing Benjamin with his
hands in his pockets. Yet, this testimony pales in comparison to
the witness's assertion that he saw defendant fire first.
Moreover, A.M.'s credibility was suspect because he initially
lied to police about his presence at the shootout. A.M. also has
a history of criminal convictions, including for burglary, petit
larceny, attempted assault, and possession of marijuana.
Further, unlike the witness who appeared to be an unconnected and
unbiased eyewitness, A.M. was part of the group who went to the
building looking for defendant. Recognizing these weaknesses,
the prosecutor relied on the witness to bolster A.M.'s testimony
and argued in summation that the witness's testimony corroborated
A.M.'s statements.
The other group member, D.S., testified that he saw
Benjamin pull out a gun and heard shots going back and forth,
from two separate weapons. His testimony that the first shot he
heard came from the direction of the building is a weak basis to
conclude defendant was the initial shooter. Even less helpful to
the People is H.G.'s testimony, because he looked out of his
window only after several shots were fired.
On the basis of the record, we conclude that there is a
reasonable possibility that the witness's testimony influenced
the jury's verdict on the intentional murder and attempted murder
counts, because his testimony was material to the crucial issue
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of whether defendant was the initial aggressor. Therefore, a new
trial should also be ordered on the attempted murder count.
IV.
Defendant's remaining claims are easily disposed of.
The claim that the evidence was legally insufficient is without
merit because the evidence permitted the inference of a tacit
agreement between defendant and Benjamin to engage in mutual
combat (see People v Hines, 97 NY2d 56 [2001] [evidence legally
sufficient where “any valid line of reasoning and permissible
inferences could lead a rational person to the conclusion reached
by the fact finder on the basis of the evidence at trial, viewed
in the light most favorable to the People”], citing People v
Williams, 84 NY2d 925, 926 [1994]).
Defendant's challenge to the prosecutor's summation is
unpreserved and his claim that trial counsel's failure to object
to the prosecutor's summation deprived him of effective
assistance of counsel is without merit (see People v Benevento,
91 NY2d 708, 713-714 [1998] [ineffective assistance of counsel
claim requires defendant to show counsel's performance was
deficient and that this deficiency prejudiced defendant such that
defendant did not receive a fair trial]; People v Baldi, 54 NY2d
137, 147 [1981] [test for ineffective assistance whether
defendant received meaningful representation]; People v Galloway,
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54 NY2d 396, 399 [1981] [prosecutor permitted wide latitude in
rhetorical comment in closing]). Last, to the extent defendant's
pro se brief can be interpreted to challenge the criminal
possession conviction, we also hold that claim to be without
merit.
V.
The order of the Appellate Division should be modified
by remitting to Supreme Court for further proceedings in
accordance with the opinion herein and, as so modified, affirmed.
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People v Darius Dubarry
No. 32
PIGOTT, J.(dissenting, in part):
The majority chooses to set aside defendant's
conviction of attempted murder despite the fact that defendant
admitted to firing at his intended target, Herburtho Benjamin.
The majority is dissatisfied that the trial court admitted the
grand jury testimony of an innocent bystander who, fearing for
his family's safety, refused to testify truthfully
notwithstanding the fact that the court learned from the
witness's Sirois hearing testimony that his refusal was induced
by defendant. Because the majority's rationale departs from our
long-held jurisprudence concerning the admission of grand jury
testimony where the People have established to the trial court's
satisfaction that the defendant's actions were behind a witness's
unavailability, I dissent. Defendant was not deprived of his
Sixth Amendment right to confrontation and there is therefore no
need for a retrial on the attempted murder count.
The following testimony was given by the eyewitness at
the Sirois hearing: The day before the witness was set to
testify against defendant, two of his siblings, who resided
across the street from where the shooting occurred, visited him
at a federal penitentiary. At that time, neither the witness nor
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his siblings knew that he was slated to be a witness for the
prosecution. Significantly, just one week earlier the People had
disclosed to the defense the witness's identity and the substance
of his statements implicating defendant in the shooting.
With no knowledge of his impending testimony, the
witness's 23-year-old brother told the witness that he had been
approached by the Israelites and that they had accused the
witness of "snitching." The witness's sister reported that one
Kendrick, who was not an Israelite, told her that Israelite
members suspected the witness of snitching, and the brother
confirmed her account. Each sibling told the witness that they
felt "like they were getting hostility in the neighborhood," and
the witness explained to the court that this caused him concern
for the safety of his family, given their proximity to where the
shooting occurred and the fact that, because of his
incarceration, he was unable to protect them from harm. He also
explained that, but for the threats made to his siblings, "it
would be a different story" and he'd "be willing to testify."
These threats apparently worked because, when the
witness arrived at court the following day, he refused to
testify, telling the court that he "didn't see anything." Of
course, this particular witness had seen plenty, as evidenced by
his grand jury testimony that was eventually read into the record
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during the People's case-in-chief. That testimony established
that he saw defendant step out of the building, light a cigarette
and start shooting. His eyewitness testimony established that
defendant started shooting first and corroborated the testimony
of other eyewitnesses. Thus, he was not an insignificant witness
and, in fact, may have been one of the People's strongest, which
explains why defendant would not have wanted him to testify.
Following appropriate procedure, in light the witness's
refusal to testify, the trial court conducted a Sirois hearing,
where the witness expressed the reasons for his fear of
testifying against defendant as summarized above. The court
asked him if he could be compelled to testify if the court held
him in contempt and sentenced him to an additional 30 days in
jail, but the witness stated that would not change his mind. He
was subjected to cross-examination by defense counsel, and
remained steadfast in his assertions that threats were made
against his family and that he did not want to testify for that
reason.
At the conclusion of the hearing, the People argued
they had not released the witness's statements to the defense
until the previous week, and it was only reasonable for the court
to infer that it was defendant who disclosed to Israelite members
that the witness's anticipated testimony would be damaging to
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defendant. The trial court agreed, and the Appellate Division
affirmed that determination.
Grand jury testimony of an unavailable witness is not
admissible as direct evidence against the defendant unless the
defendant caused the witness's unavailability through "violence,
threats or chicanery," thereby precluding the defendant from
asserting a violation of his right of confrontation (People v
Cotto, 92 NY2d 68, 75-76 [1998], citing People v Geraci, 85 NY2d
359, 366 [1995]). The reasons for allowing such testimony are
twofold: a defendant should not benefit from his own wrong, and
the integrity of the adversary process mandates deterring
defendants from attempting to squelch the damaging testimony of
an adverse witness (see Geraci, 85 NY2d at 366, 368 [citations
omitted]). We have deemed such policies "important" enough to
allow "circumstantial proof" in light of "the inherently
surreptitious nature of witness tampering," acknowledging that
"it would be unrealistic and unnecessary to adopt a formula that
would make it impossible to establish the foundation [for the
admission of grand jury testimony] in so many cases" (id. at
369). In my view, the majority's opinion does just that.
The majority emphasizes that the witness could not
"identify who specifically spoke to his brother" and that "the
witness never testified that [his sister] was personally
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approached and threatened," only that she "heard from someone
[named Kendrick] that the Israelites believed the witness was
snitching" (majority op, at 18). The identity of who exactly
made the threats, although undoubtedly helpful, is not required
to establish defendant's link to them because "[r]equiring
specific identification in situations invariably involving
surreptitious conduct permits easy evasion of the principle, and
sound public policy, that defendants should neither interfere
with witnesses nor benefit from such wrongful conduct" (Cotto, 92
NY2d at 77 n 1). A resourceful defendant need not be a card-
carrying member of Mensa to realize that it is in his best
interest that the identity of the person making the threats
remain a secret, lest the People be able to link the defendant to
the individual and, by implication, the threats themselves.
Thus, merely because the witness and his siblings were unable to
identify who actually made the threats does not factor into the
equation.
The majority asserts that "the only possible connection
between defendant and the source of the threats is defendant's
association with the Israelite congregation" and that "more than
membership" is required, such as evidence that defendant
"controlled the group's actions, influenced members of the group
to act, or that he persuaded any individual Israelite to threaten
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the witness's family" (majority op, at 20). But not every
instance of witness tampering involves a taped jailhouse
telephone conversation where the defendant threatens a specific
witness (see People v Smart, 23 NY3d 213, 216 [2014]), or a
defendant who is out on bail and therefore has "the opportunity
to orchestrate [the] intimidation" (Geraci, 85 NY2d at 369; see
Cotto, 92 NY2d at 77-78 [defendant out on bail when threats were
made and had the opportunity to arrange and orchestrate the
threats]). Unlike the defendants in Geraci and Cotto, who knew
the witness's identity months before trial and, in fact, knew
that the witness had witnessed the crime, defendant in this case
had no idea that this particular witness observed the offense and
did not know that he was going to testify until the week before
trial.
We have made clear that the absence of direct evidence
is not fatal to the People's proof because "witness tampering is
a surreptitious activity rarely admitted by the defendant or the
witness" and "few cases will involve direct evidence of this
causal link between the defendant's misconduct and the witness's
refusal to testify or failure to appear in court" (Smart, 23 NY3d
at 220 [2014], citing Geraci, 85 NY2d at 369; Cotto, 92 NY2d at
76-77). As such, the trial court, after listening to and
evaluating the witness's testimony, is permitted to "infer the
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requisite causation from the evidence of the defendant's coercive
behavior and the actions taken by witnesses in direct response to
or within a close temporal proximity to that misconduct" (Smart,
23 NY3d at 220-221, citing Matter of Holzman v Hellenbrand and
Sirois, 92 AD2d 405, 415 [2d Dept 1983]).
Here, the People proffered sufficient evidence for the
trial court to draw a permissible inference that defendant's
misconduct caused the witness to become unavailable. He
explained that he was not aware that he would be testifying until
that very morning, and that he had been visited by his siblings
the day before, which is when he learned of the threats and
feared for his family's safety. It is irrelevant that the
witness's siblings did not tell him that they feared defendant
(majority op, at 18). The intended effect is to have the
prospective witness refuse to testify or suffer an unexpected
memory loss, and, here, the witness's candid statements to the
court, tested by the defense on cross-examination, created the
obvious inference that defendant played a role in his refusal to
testify.
When the witness's siblings conveyed their concerns to
him, neither he nor they knew that he was scheduled to testify
the following day, nor did his brother know that he had
previously provided information regarding defendant's case.
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But defendant knew both of these things.
The witness did not discuss his potential testimony
with any of his family members or any of the inmates with whom he
was serving time. When the siblings disclosed the threats to
him, the defense had been in possession of his statements for a
week. Given this testimony, the court reasonably inferred that
defendant was behind the threats, and those inferences should not
be disturbed by this Court.
The majority states that "[e]ven if the inference of a
communication were appropriate on this record" -- (and it clearly
is) -- "the additional inference that the communication was
necessarily intended and structured to procure the witness's
unavailability is based on nothing more than suspicion" (majority
op, 19). Given all of the facts, and in light of the witness's
decision to not testify and his stated reasons, the trial court
drew the inference that threats made to his family days before
trial, after the defense learned of his damaging statements, were
caused at the direction of defendant. That is the fact finder's
job, not ours.
The majority insists that it is not adopting a new
standard (majority op, 21), but given its interpretation of our
jurisprudence in this area, it clearly is. We are turning an
evidentiary determination into a trial within a trial. Simply
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put, the majority's holding rewards surreptitious conduct by
defendants, allowing them to tamper with and intimidate witnesses
so long as they do it quietly without leaving a trail that leads
to the defendant. The trial court here made a permissible,
logical inference, and the Appellate Division agreed. Those
determinations should be affirmed.
This witness was an unconnected and unbiased
eyewitness. The jury, apparently crediting his grand jury
testimony that he was in an apartment across the street from the
shooting and witnessed defendant fire the first shot, convicted
defendant of not only of two counts of second-degree murder, but
also of attempted murder in relation to his shooting at Benjamin.
Defendant will receive a new trial on the intentional
and depraved indifference murder counts because the trial court
erred in charging those counts in the conjunctive. But there is
no reason to tamper with the attempted murder count as it relates
to defendant's criminal conduct toward Benjamin. The jury found
that defendant, without justification and with the intent to
cause Benjamin's death, attempted to cause his death. The
witness's testimony that defendant shot first supports that
conclusion. Now, upon a retrial, that testimony will be withheld
from the jury. The grand jury testimony will not be admissible
and a new jury will be asked to make a determination without that
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eyewitness testimony.
* * * * * * * * * * * * * * * * *
Order modified by remitting to Supreme Court, Kings County, for
further proceedings in accordance with the opinion herein and, as
so modified, affirmed. Opinion by Judge Rivera. Chief Judge
Lippman and Judges Abdus-Salaam and Stein concur. Judge Pigott
dissents in part in an opinion in which Judges Read and Fahey
concur.
Decided April 7, 2015
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