The People v. Thomas Horton

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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 163
The People &c.,
Respondent,
v.
Thomas Horton,
Appellant.
Tyson Blue, for appellant.
Christopher Bokelman, for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
In June of 2010, investigators in the Wayne County
Sheriff's Office planned a controlled, recorded drug purchase.
The investigators recruited a young woman (hereafter, the
confidential informant) to make the actual buy. She was wired
with a microphone, and a camera was concealed in the back seat of
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her car. On June 10th, she arranged a meeting, apparently with
defendant Thomas Horton, and drove to a parking lot to rendezvous
with him. When defendant arrived, he was accompanied by another
man, Clarence Jackson, who sold the confidential informant a
quantity of cocaine, a transaction captured by the hidden camera
and recorded by the wire.
On or about April 21, 2011, Jackson was arrested and
charged with sale of a controlled substance. That same day, he
went to defendant's house with a copy of the videotape; Jackson
explained that he had just been arrested for the sale and that he
planned to take a plea. Later that day, the confidential
informant contacted one of the investigators who had worked with
her on the buy to report that defendant had begun "outing" her on
Facebook. In addition to identifying her as an informant,
defendant uploaded a clip of the surveillance video to the
website YouTube, and provided a link to it on his Facebook page.
The video spawned a flurry of discussion and recriminations from
defendant and his Facebook friends. Many statements were made by
defendant and others denouncing snitches in general and the
confidential informant specifically, including warnings that
"Snitches get stitches" and "I hope she gets what's coming to
her."
On April 25, 2011, defendant was arrested for fourth-
degree witness tampering, which provides, as relevant, that
"[a] person is guilty of tampering with a witness when,
knowing that a person is or is about to be called as a
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witness in an action or proceeding, (a) he wrongfully
induces or attempts to induce such person to absent
himself from, or otherwise to avoid or seek to avoid
appearing or testifying at, such action or proceeding"
(Penal Law § 215.10).
On June 27, 2011, defendant was tried by jury in Town Court and
convicted as charged; he was sentenced to one year in Wayne
County jail. Defendant appealed to County Court, arguing that
there was insufficient evidence that he attempted to prevent the
confidential informant from testifying, or that he had any
knowledge that she would testify in any proceeding.
County Court affirmed. The judge noted that
defendant's best friend, Jackson, was charged with a drug sale,
and knew that the confidential informant had worked with police
to secure the charge; that defendant made Facebook posts
identifying the confidential informant; and that the confidential
informant was able to see these posts and the comments from other
Facebook users that the posts generated. A Judge of this Court
granted defendant leave to appeal (21 NY3d 1074 [2013]), and we
now affirm.
The evidence, seen in the light most favorable to the
People, is sufficient to establish that defendant knew that the
confidential informant might testify in a proceeding, and that he
wrongfully sought to stop her from doing so. After learning
about Jackson's arrest and the confidential informant's role as a
witness against Jackson and, potentially, himself, defendant
immediately posted communications on the internet that the jury
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might have reasonably inferred were coded threats that were
intended to induce the confidential informant not to testify.
And in addition to the public postings on Facebook and YouTube,
defendant was in contact via Facebook messages (which essentially
act as email on the website) with the confidential informant and
her mother.
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Order affirmed, in a memorandum. Chief Judge Lippman and Judges
Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.
Decided October 21, 2014
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