People v Lessie

[*1] People v Lessie 2006 NY Slip Op 50760(U) [11 Misc 3d 1088(A)] Decided on April 21, 2006 Supreme Court, Kings County Holdman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 21, 2006
Supreme Court, Kings County

The People of the State of New York,

against

Andrew Lessie, Defendant.



3226/2005

Robert K. Holdman, J.

Upon consideration of the defendant's motion to set aside verdict pursuant to C.P.L. § 330.30 (1), dated February 8, 2006, and the People's response, dated February 23, 2006, and upon oral argument by the parties on February 24, 2006 [FN1], the defendant's motion is denied for the reasons set forth below.

INTRODUCTION

The defendant was charged with Criminal Possession of a Weapon in the Third Degree [FN2] [P.L. § 265.02 (4)] and Resisting Arrest [P.L. § 205.30] for an event that occurred on May 5, 2005 at approximately 10:15 p.m. in the vicinity of 908 Thomas Boyland Street, Kings County.

On January 18, 2006, while waiting to testify at trial, the People's sole witness was allegedly threatened outside of the courtroom by two defense witnesses. After a hearing outside the presence of the jury, the Court admitted testimony of these threats at trial as evidence of the defendant's consciousness of guilt.

HEARING

The People's sole witness at the hearing was New York City Police Officer Robert Cincotta, a two-year member of the N.Y.P.D.

P.O. Cincotta stated that while waiting to testify on January 18, 2006, he was seated on a bench in the hallway outside of the courtroom when two then unidentified males walked [*2]over to the officer and called him a "big pussy" and a "liar." Shortly thereafter, the same males sat down directly across from P.O. Cincotta and one of the males exclaimed, "You are a liar. You're a pussy. You are going to get what you deserve in Brownsville [FN3] when I see you." P.O. Cincotta immediately proceeded to report these threats to the duty Court Officer stationed down the hallway.

While P.O. Cincotta was on the witness stand, Martin Fraser and a fourteen-year-old male [FN4], both of whom were on the defendant's witness list and accompanied the defendant to court, were escorted into the courtroom and identified by the officer as the two individuals who threatened him in the hallway. The two individuals were previously identified by P.O. Cincotta to the duty Court Officer in the hallway. (The record also reflects [FN5] that, before making these alleged threats, these two males were inside the courtroom with the defendant prior to the call of the case, when P.O. Cincotta entered to briefly speak with the Assistant District Attorney.) Martin Fraser and the fourteen-year-old were placed under arrest by court officers for intimidating a witness.

The Court's Ruling

The Court ruled evidence of these threats admissible at trial as evidence of the defendant's consciousness of guilt, citing, inter alia, People v. Plummer, 36 NY2d 161 (1975), People v. Shilitano, 218 NY 161 (1916) and People v. Cotto, 222 AD2d 345 (1st Dept. 1995). The defendant's multiple mistrial motions predicated upon this ruling were denied.

Similarly, after the Court denied the defendant's initial mistrial motions, defense counsel made a mistrial motion based upon alleged "incompetence of counsel" that was denied [FN6].

TRIAL

People's Case

Police Officer Cincotta

P.O. Cincotta testified that while he was in uniform on foot patrol alone, he observed [*3]the defendant and apprehended other Stephen Peters [FN7] apparently breaking into a parked car. The defendant was leaning inside the car while Peters was standing outside of the car looking up and down the block.

As P.O. Cincotta approached the scene with his gun still holstered - P.O. Cincotta never drew his weapon throughout the entire incident - he smelled marihuana and observed, where the defendant was leaning, an open cardboard box on the front seat with the handle of a gun protruding from it. P.O. Cincotta, in an attempt to maintain a calm encounter, requested that the defendant show him the marihuana without mention of a weapon. When the defendant went to retrieve the marihuana, P.O. Cincotta grabbed the defendant's right hand and attempted to handcuff him. At this point a struggle ensued and Peters twice struck P.O. Cincotta causing him to loose control of the defendant.

P.O. Cincotta pursued the defendant, ordering him to "stop" and stating that he was "under arrest," as the defendant fled with cardboard box in hand. As P.O. Cincotta closed in on the defendant, the defendant repeatedly punched the officer in the chest, leg and side. At this point, an unidentified third male emerged from 908 Boyland Street and P.O. Cincotta directed him to call for assistance. Instead, the unidentified male kicked P.O. Cincotta in his face.

Finally, P.O. Cincotta was able to radio for assistance and handcuff the defendant.

The cardboard box was recovered along with a loaded .44 caliber Smith & Wesson revolver inside.

Prior to the conclusion of his direct testimony, P.O. Cincotta testified as to the threats he received while outside the courtroom and the Court provided the jury with appropriate cautionary instructions.

Prior to the Court's recess for the day on January 18, 2006, the People moved the Court to remand the defendant. The People's application was denied despite the events that occurred on January 18, 2006, and the fact that a prima facie case was established in support of the charged crimes by P.O. Cincotta's testimony. Thus, the defendant remained at liberty to assist counsel in his defense.

At defense request, the Court itself, with the assistance of the court officers and staff, secured the attendance of the fourteen-year-old from Family Court custody in order for him to testify on the defendant's behalf on January 19, 2006. Counsel was also assigned to the fourteen-year-old and present during his client's testimony. Martin Fraser, who was released from custody after his arraignment before the Criminal Court, also testified on the defendant's behalf while his counsel was present on January 24, 2006.

Firearms Stipulation

The firearm and its ammunition were stipulated by the parties as operable (Court Exhibit 1).

[*4]Defense Case

Fourteen-year-old

The fourteen-year-old testified that he was at 908 Thomas Boyland Street in the lobby, along with Martin Fraser, when the incident occurred. This witness testified that P.O. Cincotta was attempting to arrest Stephen Peters and not the defendant throughout the entire encounter. Further, the defendant was asked by the officer to call 911, but the defendant's cell phone battery "had died [FN8]." When Peters fled and was not apprehended, P.O. Cincotta turned to the defendant and arrested him instead. According to the fourteen-year-old, P.O. Cincotta said, "[A]ll right, now you are under arrest [FN9]."

On cross-examination the witness acknowledged that he and Martin Fraser accompanied the defendant to court on January 18, 2006 and that they, as well as their families, have been close friends for a "long time [FN10]."

Martin Fraser

Martin Fraser provided an overall account similar to that testified to by the fourteen-year-old witness, including the fact that the defendant's cell "phone battery was dead [FN11]" immediately prior to his encounter with P.O. Cincotta. Fraser alleged that Peters escaped from P.O. Cincotta and that the officer grabbed the defendant instead. According to Fraser, P.O. Cincotta said to the defendant, "I have you now, bitch [FN12]."

Similarly, Fraser admitted that he "looks up to [FN13]" the defendant and that they came to court together on January 18, 2006. Fraser denied, however, speaking with the defendant about his testimony.

Defendant's Testimony

The defendant's testimony was similar to the other two defense witnesses. He claims that it was only Stephen Peters who had any encounter with P.O. Cincotta, that he never saw the gun that night and had no marihuana in his possession that evening. After Peters escaped, P.O. Cincotta arrested the defendant, stating, "I got you [FN14]." The defendant corroborated the fact that he has a close relationship with the two other defense witnesses. Further, the [*5]defendant conceded that he was previously convicted of Burglary in the Third Degree [FN15].

VERDICT

On January 26, 2006, the jury returned a verdict of Not Guilty as to Criminal Possession of a Weapon in the Third Degree and Guilty as to Resisting Arrest.

CONCLUSION OF LAW

It is firmly established that evidence that a defendant has threatened or has authorized another to threaten a prosecution witness is admissible to manifest the defendant's consciousness of guilt. People v. Shilitano, 218 NY 161 (1916); People v. Kornegay, 164 AD2d 868 (2d Dept. 1990), lv. denied, 77 NY2d 840 (1991) (People were entitled to elicit testimony from their witnesses that close friends of the defendant had intimated them, as their actions were circumstantially tied to the defendant).

A circumstantial link must be established between the defendant and the threatening conduct of another. People v. Spruill, 299 AD2d 374 (2d Dept. 2002), habeas denied, 2005 U.S. Dist. LEXIS 14869 (E.D.NY July 25, 2005); People v. Cotto, 222 AD2d 345 (1st Dept. 1995), lv. denied, 88 NY2d 846 (1996).

In Cotto, evidence of a circumstantial link between the defendant and the individual who threatened a prosecution witness was arguably less powerful than that in the instant matter. A prosecution witness received a visit by an alleged associate of the defendant who was accompanied by a pit bull. Among other things, the associate said to the witness that her testimony could send "Robert [FN16]" to jail. The First Department held, ". . . the jury could have found such visit and its implied threat to have been circumstantially connected to defendant and could fairly infer that it might have some tendency to prove consciousness of guilt." Id., citing, People v. Plummer, 36 NY2d 161 (1975); People v. Griffin, 126 AD2d 743 (2d Dept. 1987).

Numerous other decisions support the admissibility of the threat evidence in this case. See, e.g., People v. Marino, 6 AD3d 214 (1st Dept. 2004), lv. denied, 3 NY3d 643 (2004) (threats made by defendant's family properly admitted into evidence); People v. Bonnemere, 308 AD2d 418 (1st Dept. 2003), lv. denied, 1 NY3d 568 (2003) (victims' testimony regarding threats and bribe offers by person claiming to be defendant's cousin properly received into evidence); People v. Almestica, 288 AD2d 483 (2d Dept. 2001), lv. denied, 97 NY2d 750 (2002), post-conviction relief denied, 10 AD3d 693 (2d Dept. 2004), lv. denied, 4 NY3d 740 (2004) (harassing statements made by defendant's sisters to People's chief witness were properly introduced as some evidence of defendant's consciousness of guilt); People v. Pitts, [*6]218 AD2d 715 (2d Dept. 1995), lv. denied, 87 NY2d 850 (1995) (threats by defendant's friends and family to People's witnesses properly admitted); People v. Smith, 214 AD2d 688 (2d Dept. 1995), lv. denied, 86 NY2d 802 (1995).

Here, the circumstantial evidence linking the defendant to the threatening conduct was more than sufficient. First, the two individuals, both close family friends of the defendant, traveled to court with the defendant on January 18, 2006. Second, both individuals were inside the courtroom with the defendant, who was at liberty, before court proceedings commenced. Both individuals were in a position to plainly observe P.O. Cincotta enter the courtroom and engage the Assistant District Attorney in conversation and then watch the officer exit the courtroom; it was shortly thereafter when P.O. Cincotta was threatened. Third, both individuals were named in the defendant's witness list, which was filed with the Court before the commencement of trial. Fourth, the fact that the two individuals referred to P.O. Cincotta as a "liar" while the officer was waiting outside of the courtroom to testify manifests a clear reference to his anticipated testimony against the defendant, while the threat of "you are going to get what you deserve in Brownsville when I see you" is unvarnished and requires no interpretation.

The credibility of all the witnesses at trial was a matter for the jury. People v. Spruill, 299 AD2d at 375.

Any contention by the defendant that the Court's ruling was prejudicial to him is belied by the plain fact that the jury acquitted the defendant of the most serious count and violent felony offense of Criminal Possession of a Weapon in the Third Degree.

Accordingly, the defendant's motion is denied.

SO ORDERED.

___________________________________

HON. ROBERT K. HOLDMAN, J.S.C.

Judge of the Court of Claims Footnotes

Footnote 1: On this date the defendant's instant motion was orally denied on the record.

Footnote 2: Criminal Possession of a Weapon in the Fourth Degree [P.L. § 265.01 (1)], although charged in the indictment, was not submitted to the jury.

Footnote 3: Brownsville is the Brooklyn neighborhood where the underlying crime occurred.

Footnote 4: Due to the age of this individual and the fact he is the subject of Family Court proceedings as a result of this incident in the courthouse, his name is omitted from this Decision.

Footnote 5: See, e.g., transcript, dated January 18, 2006, at page 97.

Footnote 6: Although denied as without merit, due to the fact that an allegation of incompetence or ineffective assistance of counsel appears in the record, this should be considered by the appropriate parties as to a possible conflict of interest if defense counsel's firm seeks to remain as appellate counsel for the defendant.

Footnote 7: Only defendant Lessie was tried before this Court.

Footnote 8: Transcript, p. 195.

Footnote 9: Transcript, p. 196.

Footnote 10: Transcript, p. 200.

Footnote 11: Transcript, p. 224.

Footnote 12: Transcript, p. 226.

Footnote 13: Transcript, p. 230.

Footnote 14: Transcript, p. 251.

Footnote 15: The People were precluded from questioning the defendant about the fact that he was on probation for the burglary conviction at the time of this trial. Subsequently, the defendant was sentenced to a period of incarceration of two and one-third to seven years for his violation of probation.

Footnote 16: The name of the defendant in Cotto is Roberto Cotto.