PEOPLE v. DARBASIE (2026)

Judgment, Supreme Court, New York County (Michele S. Rodney, J.), rendered July 29, 2024, convicting defendant, after a jury trial, of intimidating a victim or witness in the third degree (three counts) and tampering with a witness in the third degree (two counts), and sentencing him to concurrent jail terms of six months, unanimously affirmed.

Defendant's legal insufficiency claim challenging the evidence of his liability as an accomplice is unpreserved, and we decline to review it in the interest of justice (see People v. Gray, 86 N.Y.2d 10, 20–21, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995];  People v. Shomo, 235 A.D.2d 208, 208, 653 N.Y.S.2d 292 [1st Dept. 1997], lv denied 89 N.Y.2d 988, 656 N.Y.S.2d 747, 678 N.E.2d 1363 [1997]).  With respect to defendant's legal insufficiency claims regarding the evidence that he personally wrongfully compelled the witnesses to refrain from testifying or providing information by instilling a fear of physical injury (see Penal Law §§ 215.11[1], 215.15[1]), viewing the evidence in the light most favorable to the People (see People v. Kancharla, 23 N.Y.3d 294, 302, 991 N.Y.S.2d 1, 14 N.E.3d 354 [2014]), we find the evidence legally sufficient to establish defendant's guilt of intimidating a victim or witness in the third degree and tampering with a witness in the third degree.  Defendant created a new social media account under a false name, and he composed numerous implicitly threatening social media posts, containing misleading and inflammatory edited excerpts of police interviews with the witnesses, characterizing the witnesses as “pigs,” “rats,” and “snitches,” encouraging other users to spread the videos and share the posts, and tagging individuals mentioned by the witnesses (see People v. Coursey, 250 A.D.2d 351, 673 N.Y.S.2d 78 [1st Dept. 1998] [“jury was entitled to draw inferences based on the surrounding events”], lv denied 92 N.Y.2d 850, 677 N.Y.S.2d 80, 699 N.E.2d 440 [1998];  see also People v. Harris, 159 A.D.3d 538, 539, 72 N.Y.S.3d 82 [1st Dept. 2018], lv denied 31 N.Y.3d 1148, 83 N.Y.S.3d 430, 108 N.E.3d 504 [2018]).  Two of the witnesses promptly reported the posts to police, alleging that someone they knew was “harassing and threatening them” online.  Even after the witnesses were subjected to vandalism and harassment, and defendant was informed that his posts had potentially “spooked” the witnesses, defendant declined to remove the posts and continued posting about the witnesses’ cooperation with police.

The court providently exercised its discretion by admitting evidence of the vandalism and harassment committed against two of the witnesses by codefendants (see People v. Smith, 278 A.D.2d 154, 154, 718 N.Y.S.2d 321 [1st Dept. 2000] [“Specifically, we note that the challenged evidence concerning the conduct of a codefendant who had pleaded guilty prior to defendant's trial was clearly relevant, in context, to defendant's guilt.”]), and the significant probative value of that evidence was not outweighed by any undue prejudice (see People v. Mateo, 2 N.Y.3d 383, 424–425, 779 N.Y.S.2d 399, 811 N.E.2d 1053 [2004], cert denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828 [2004]).

The court also providently exercised its discretion by admitting police body camera footage containing hearsay statements by one of the witnesses (see People v. Johnson, 1 N.Y.3d 302, 306, 772 N.Y.S.2d 238, 804 N.E.2d 402 [2003]).  The statements were made less than half an hour after one of the codefendants smashed the witness's car window with a blackjack then ran into a nearby school;  the responding officers immediately noted her agitation;  and she appeared visibly distressed on the videos while speaking to the officers (see People v. Hernandez, 28 N.Y.3d 1056, 1057, 43 N.Y.S.3d 237, 65 N.E.3d 1272 [2016];  People v. Nosea, 212 A.D.3d 511, 511–512, 181 N.Y.S.3d 558 [1st Dept. 2023], lv denied 39 N.Y.3d 1143, 188 N.Y.S.3d 448, 209 N.E.3d 1276 [2023]).  The admission of these non-testimonial statements did not violate defendant's confrontation rights, as they were made to an officer whose primary purpose was to determine what had happened and to ensure the safety of the general public (see Ohio v. Clark, 576 U.S. 237, 135 S.Ct. 2173, 192 L.Ed.2d 306 [2015];  People v. Nieves–Andino, 9 N.Y.3d 12, 15–16, 840 N.Y.S.2d 882, 872 N.E.2d 1188 [2007];  People v. Gantt, 48 A.D.3d 59, 71, 848 N.Y.S.2d 156 [1st Dept. 2007], lv denied 10 N.Y.3d 765, 854 N.Y.S.2d 327, 883 N.E.2d 1262 [2008]).

The court also providently exercised its discretion by admitting surveillance video footage from the underlying homicide case.  The video was relevant to material issues, including defendant's knowledge and intent, as it highlighted the crucial nature of the witness testimony (see People v. Perez, 182 A.D.3d 454, 454, 123 N.Y.S.3d 90 [1st Dept. 2020], lv denied 35 N.Y.3d 1029, 126 N.Y.S.3d 48, 149 N.E.3d 886 [2020]).  Moreover, the court's limiting instruction, delivered before the video was published to the jury and again during the court's charge, “minimize[d] any potential undue prejudice from the admission of evidence” (People v. Frumusa, 29 N.Y.3d 364, 373, 57 N.Y.S.3d 103, 79 N.E.3d 495 [2017]).

The court meaningfully responded to a jury note inquiring whether the comments made on his social media posts could be viewed as “an extension of [defendant]” by advising the jury that this was a factual question for the jury to determine (see People v. Malloy, 55 N.Y.2d 296, 301, 449 N.Y.S.2d 168, 434 N.E.2d 237 [1982], cert denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93 [1982]).  The court could not direct the jury how to evaluate the facts, so it meaningfully responded to the jury's question, and it was not required to “marshal the evidence or explain the parties’ theories and proof” (People v. Williams, 190 A.D.3d 498, 499, 139 N.Y.S.3d 202 [1st Dept. 2021], lv denied 36 N.Y.3d 1124, 146 N.Y.S.3d 193, 169 N.E.3d 551 [2021] [internal quotation marks omitted]).  Defendant has not demonstrated that he was prejudiced by the court's response (see People v. Lourido, 70 N.Y.2d 428, 435, 522 N.Y.S.2d 98, 516 N.E.2d 1212 [1987]).  The court informed the jury that it could seek additional clarification, but the jury did not ask any further questions about defendant's social media posts or comments (see People v. Almodovar, 62 N.Y.2d 126, 132, 476 N.Y.S.2d 95, 464 N.E.2d 463 [1984];  People v. Stokes, 149 A.D.3d 510, 511, 52 N.Y.S.3d 326 [1st Dept. 2017], lv denied 29 N.Y.3d 1087, 64 N.Y.S.3d 177, 86 N.E.3d 264 [2017]).