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The PEOPLE of the State of New York, Plaintiff, v. Frank COOK, et al., Defendants.
Defendants Frank Cook, Alfred Crooks, Leroy Dunn, Anthony Frazier and Chief Ponce Deleon move this Court to re-argue the Court's July 23, 2019, Decision and Order denying the defendants' motions to reduce or dismiss the indictment due to insufficiencies in the People's grand jury presentation. The People oppose the defendants' motion. Upon review of the parties' submissions, this Court finds as follows:
Nothing contained in New York's Criminal Procedure Law (hereinafter: C.P.L.) provides a legal vehicle for counsel to petition a court to renew, reargue or reconsider a previously rendered decision. However, there is a body of case law that holds that where there are no applicable provisions in the C.P.L. concerning an issue at hand, those provisions of New York's Civil Practice Law and Rules (hereinafter: C.P.L.R.) that address the issue may be applied in a criminal action (People v. Borzon, 47 Misc 3d 914 [Supreme Ct, Bronx County 2015]; People v. Davis, 169 Misc 2d 977 [County Ct, Westchester County 1996]; People v. Radtke, 153 Misc 2d 554 [Supreme Ct, Queens County 1992]).
A motion to reargue “shall be based on matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion; and shall not include any matters of fact not offered in the prior motion.” C.P.L.R. § 2221(d)(2). Moreover, said motion must be filed “within thirty days after service of a copy of the order determining the prior motion․” C.P.L.R. § 2221(d)(3). However, pursuant to C.P.L. § 255.20(3), “the court must entertain and decide on its merits, at anytime before the end of trial, any appropriate pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which for other good cause, could not reasonably have been raised within the period specified”
The defendants' motion to reargue is GRANTED, pursuant to CPL § 255.20(3) and People v. Wisdom, 23 NY3d 970 (2014), in that the instant defense motion for re-argument is not time barred due to good cause shown, as the instant motion could not have been brought before this Court without the defense first receiving a copy of the minutes from the presentation of this case to the grand jury, by the People.
Defendant Alfred Crooks is charged, pursuant to Kings County Indictment 1937/2019, with the crimes of Murder in the Second Degree (Penal Law [hereinafter: P.L.] § 125.25(1)), Conspiracy in the Second Degree (P.L. § 105.15) and other related charges, based on an accessorial liability theory ( see P.L. § 20.00). Defendants Frank Cook, Leroy Dunn, Anthony Frazier and Chief Ponce Deleon are also charged acting in concert (see P.L. § 20.00), pursuant to the above-listed Kings County Indictment, with the crimes of Manslaughter in the First Degree (P.L. § 125.20(1)), Conspiracy in the Fourth Degree (P.L. § 105.10(1)) and other related charges. Said indictment arising out of the March 19, 2019, street pursuit and shooting death of Tyquan Eversly (hereinafter: decedent).
On March 19, 2019, the decedent was chased throughout the streets of Brooklyn by a group of ten individuals, the five above-listed movant-defendants and five additional co-defendants who do not join in the instant motion. The chase of the decedent was conducted by a primary group consisting of six co-defendants, including Alfred Crooks. The primary group was then followed, at a distance by the secondary group, consisting of defendants Frank Cook, Leroy Dunn, Anthony Frazier and, at a considerable distance behind that group, Chief Ponce Deleon.
During a foot pursuit that spanned multiple city blocks over many minutes, defendant Alfred Crooks gentures to co-defendant Donovan McDay to join the hunt for the decedent. Defendant McDay is recorded on surveillance video running after the decedent, with the primary group, holding and pointing what appears to be a handgun at the decedent.
After being chased for several minutes the decedent entered the front yard of 739 Cleveland Street and crouched behind a hidden vehicle in the driveway to obscure him from the defendants' view. The primary group passed in front of 739 Cleveland Street, on that side of the street, while the secondary group was on the opposite side of Cleveland Street, with their attention turned toward the primary group. After initially losing sight of the decedent, the primary group returned in the direction they traveled, followed shortly thereafter by most of the members of the secondary group. At that point, defendant Anthony Frazier appears to take notice of the decedent hiding behind the parked vehicle on the driveway and points out the location of the decedent to the primary group, while defendant Chief Ponce Deleon approached the first group and appears to say something to that group. With that, the primary group returns, enters the front yard of 739 Cleveland Street and resumes pursuit of the defendant to the rear yard. Defendant Alfred Crooks joins co-defendants Michael Reid and Donovan McDay as they corral, corner and attempt to catch the decedent against the property's rear fence.
In an attempt to escape, the decedent climbs the fence, but while hurdling the fence, the decedent's foot got caught and he fell headfirst into the adjacent property, 666 Elton Street. While tangled on the fence defendant Michael Reid takes a large stone or brick and throws it on top of the decedent while defendant Donovan McDay fired multiple shots over the fence at the decedent, as defendant Alfred Crooks is at their shoulder.
While the primary group is engaged in the above-described conduct, the secondary group crosses Cleveland Street, enters the front yard of 739 Cleveland Street and starts to head down the driveway to where the primary group had pursued the decedent. Approximately half-way down the driveway the secondary group stops abruptly, at about the time surveillance video shows defendant Donovan McDay shooting over the fence, and the secondary group runs out of 739 Cleveland Street. The secondary groups is followed by the primary group as they also flee the scene of the homicide.
Cardio-Pulmonary Resuscitation was initiated immediately by first responders upon encountering the decedent and he was subsequently pronounced dead at Brookdale Hospital as a result of multiple gunshot wounds.
Pursuant to P.L. § 20.00, ‘When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.” (emphasis added).
In the instant matter the ‘mental culpability required’ for defendant Alfred Crooks to be acting in concert with the actual shooter in this case is intent to cause death (see P.L. 125.25(1)). “A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or engage in such conduct.” P.L. § 15.05(1).
The People rely in part on the case of People v. Burrell, 236 AD2d 40 (1st Dep't, 1997) as an illustration of conduct found to be sufficient to establish accessorial liability. Although their argument is misplaced that the case applies to all movants in this instant motion, it is analogous to the conduct of defendant Alfred Crooks. In much the same way that defendant Burrell was the immediate prevention for individuals entering or leaving a store at the time of the robbery, defendant Alfred Crooks not only actively assisted in corralling and capturing the decedent in the instant case, but served as an immediate and unavoidable barrier to the decedent's attempted escape. See also People v. Whatley, 69 NY2d 784 (1987) (Based on timing and events one can infer the defendant shared the mens rea to participate in the crime).
Based on a review of all of the materials provided by the parties, including the grand jury minutes and all related exhibits, as well as the moving and opposition papers to the instant motion, this Court finds sufficient evidence was presented to the grand jury to satisfy the charges against levied against defendant Alfred Crooks. The evidence presented against that defendant demonstrates, to the applicable grand jury standard (see People v. Dunleavy, 41 AD2d 717, aff'd 33 NY2d 573; People v. Jennings, 69 NY2d 103), that he shared in the intent to cause the death of the decedent by motioning for the gunman, defendant Donovan McDay, to join the chase, as well as assisting in the immediate pursuit of the defendant to the location of the homicide and his participation in the attempted corralling of the decedent in the rear yard for the purposes of the decedent's execution. See People v. Pelchat, 62 NY2d 97; People v. Calbud, Inc., 49 NY2d 389. In addition, the grand jury proceedings were conducted in conformity with the requirements of Article 190 of the C.P.L.
As such, upon reargument, Defendant Alfred Crooks' motion to reduce or dismiss the charges based on improprieties in the grand jury presentation is hereby: DENIED.
Yet, the law requires more than someone being merely present, even when they cheer on, encourage criminal behavior, or even point out potential or intended victims to others for their criminal conduct (see People v. Akptotanor, 158 Ad2d 694, 695 (2d Dept, 1990), “defendant apparently flushed out the victim, the purpose established was less in degree than an intention to kill”). It is still required that they share the same mens rea as the criminal actor to be criminally liable for the conduct of another. “A defendant's mere presence at the scene of a crime, even with knowledge that the crime is taking place, or mere association with the perpetrator of a crime is not enough for accessorial liability.” People v. Fonerin, 159 AD3d 717, 719, citing People v. Lopez, 137 Ad3d 1166, 1167; Matter of Tatiana N., 71 AD3d 186, 190-191.
The requisite mens rea at issue for the secondary group is an intent to cause serious physical injury. See P.L. 125.20(1). Similarly to Fonerin (supra), the actions of the secondary group of following the primary group as that group pursued the decedent and Defendant Anthony Frazier's specific conduct of pointing out of the victim to the primary group while the decedent was in hiding, constitutes deplorable behavior. However, that behavior does not evidence a mens rea of intent to cause serious physical injury, even when viewed in a light most favorable to the prosecution. Additionally, there was no evidence introduced that the secondary group knew of the primary group's intention to seriously injure or kill the decedent (cf. People v. Whatley, supra). As such, Defendants Frank Cook, Leroy Dunn, Anthony Frazier and Chief Ponce Deleon's motion to reduce or dismiss the charges based on improprieties in the grand jury presentation is hereby: GRANTED.
Based upon the foregoing, this Court finds that, as to Defendants Frank Cook, Leroy Dunn, Anthony Frazier and Chief Ponce Deleon, the instant indictment must be dismissed on the grounds that the evidence presented to the grand jury was not legally sufficient to support the element of, acting in concert, intent to cause serious physical injury to a prima facie standard.
This constitutes the decision, opinion and Order of the Court.
Vincent M. Del Giudice, J.
Response sent, thank you
Docket No: 1937-2019
Decided: September 30, 2020
Court: Supreme Court, Kings County, New York.
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