PEOPLE v. CATO

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Dane'e CATO, also known as Danee Cato, Appellant.

2016-02152

Decided: July 31, 2019

LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, BETSY BARROS, ANGELA G. IANNACCI, JJ. Janet E. Sabel, New York, N.Y. (David Crow, Ursula Bentele, Justine Luongo, and Davis Polk & Wardwell LLP [Alan J. Tabak, Jordan W. Garman, Anne R. Yearwood, and Rebecca L. Harris], of counsel), for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Christopher J. Blira–Koessler of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robert Charles Kohm, J.), rendered February 17, 2016, convicting him of conspiracy in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

The defendant and four others, all alleged to be members of the S.N.O.W. Gang, were tried together in connection with an indictment charging them, inter alia, with conspiracy to murder two members of a rival gang.  At the joint trial, no alleged coconspirators testified for the prosecution.  Instead, the People, among other things, presented testimony from police officers involved in the investigation and introduced into evidence thousands of social media posts made by the defendants and numerous charged and uncharged coconspirators.  The jury found the defendant guilty of two counts of conspiracy in the second degree.

During the trial, the Supreme Court declared Detective Adam Georg an expert “in the hierarchy, practices, [and] languages of the S.N.O.W. Gang and other gangs.”  Similarly, the court declared Lieutenant Robert Bracero an expert “in the history, hierarchy, practices and language of the S.N.O.W. Gang and rival gangs.”  Georg testified that his knowledge of the S.N.O.W. Gang was derived from, among other things, approximately 70 to 80 debriefings of S.N.O.W. Gang members, many of whom had been arrested and were in custody at the police station or in jail.  Similarly, Bracero testified that he debriefed approximately 50 S.N.O.W. Gang members after their arrests.

On appeal, the defendant contends that the evidence was legally insufficient to establish his guilt, and that the verdict was against the weight of the evidence.  Alternatively, the defendant contends that Georg's and Bracero's testimony violated Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 by permitting the introduction into evidence of out-of-court testimonial statements made by absent witnesses who were never subjected to cross examination (see U.S. v. Mejia, 545 F.3d 179, 198 [2d Cir.] ), and that Georg's testimony also ran afoul of the proscription against police experts acting as summation witnesses, in violation of People v. Inoa, 25 N.Y.3d 466, 474–475, 34 N.E.3d 839.

Contrary to the defendant's contention, viewing the evidence in the light most favorable to the prosecution, there was legally sufficient evidence to establish the defendant's guilt of conspiracy in the second degree beyond a reasonable doubt (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932).  Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

However, for the reasons set forth in our decision and order on appeal by one of the codefendants (People v. Jones, 166 A.D.3d 803, 88 N.Y.S.3d 88), the testimony of Georg and Bracero violated Crawford and Inoa. Since the evidence of the defendant's guilt, without reference to the errors, was far from overwhelming, these errors were not harmless (see People v. Crimmins, 36 N.Y.2d 230, 241, 367 N.Y.S.2d 213, 326 N.E.2d 787).  Accordingly, a new trial is required.

The defendant's remaining contentions either are without merit or need not be reached in light of our determination.

AUSTIN, J.P., MILLER, BARROS and IANNACCI, JJ., concur.