People v. Slivienski

204 A.D.3d 1228

166 N.Y.S.3d 392

The PEOPLE of the State of New York, Respondent,

v.Thomas SLIVIENSKI, Appellant.

112033

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

Calendar Date: February 8, 2022

Decided and Entered: April 21, 2022

Paul J. Connolly, Delmar, for appellant.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Pritzker, Colangelo and Ceresia, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeal from a judgment of the Supreme Court (Lynch, J.), rendered November 22, 2019 in Albany County, upon a verdict convicting defendant of the crimes of murder in the second degree and criminal possession of a weapon in the second degree.

On November 16, 2018, at approximately 10:00 p.m., the victim and four friends, Bryan Carpenter, Marquis Alston, Jeremy Shumway and John Gomes (hereinafter collectively referred to as the friends), went to the bike path located in the City of Cohoes, Albany County to purchase marihuana. In fact, the true plan was that the victim and the friends were to take the marihuana from the dealer without paying for it, which they had done in the past. The victim was in contact with the dealer, who directed the victim to meet him alone. The friends became apprehensive when the victim did not return, so Carpenter called him twice in a span of 10 minutes. During the second call, Carpenter heard someone speaking with the victim followed by gunshots. The victim was shot multiple times, resulting in his death. After an investigation in which defendant was identified as a suspect, he was arrested and subsequently charged by indictment with murder in the second degree and criminal possession of a weapon in the second degree. A jury trial ensued, after which defendant was found guilty as charged. Defendant was then sentenced to a prison term of 20 years to life for his conviction of murder in the second degree and to a lesser concurrent prison term for the other conviction. Defendant appeals.

Defendant first asserts that the verdict was legally insufficient and against the weight of the evidence because the evidence presented was fully consistent with his innocence and supported the conclusion that he was not the shooter. To establish murder in the second degree as charged in the indictment, the People were required to prove that defendant, "[w]ith intent to cause the death of another person, ... cause[d] the death of such person or of a third person" ( Penal Law § 125.25[1] ). Additionally, to establish criminal possession of a weapon in the second degree as charged in the indictment, the People were required to prove that defendant "possesse[d] any loaded firearm" ( Penal Law § 265.03[3] ).

As conceded by defendant, the only disputed element is identity. To that end, given the fact that this case involved a significant amount of circumstantial evidence, the testimony was voluminous and much of it concerned proving the identity of the shooter. The friends, except Alston, testified regarding the night of the murder and their testimonies largely corroborated each other, despite being separated upon the arrival of law enforcement. The friends who testified each confirmed that on November 16, 2018, they, along with the victim, attended Carpenter's baby shower and thereafter went to the bike path to obtain marihuana. Their plan was to "stain" the dealer, which the friends explained meant taking the marihuana without paying. According to Carpenter, the dealer initiated contact with the victim on Snapchat. The dealer changed the meeting location multiple times and the victim was told to come alone, so he walked ahead of the friends to a point where he could not be seen. During the second of two phone calls that Carpenter placed to the victim when he did not return, gun shots were heard from the direction of the victim, although there was a discrepancy in the testimony as to the number of gun shots heard. Upon running to and observing the victim, two of the friends ran to get help. Carpenter testified that he stayed with the victim for less than five minutes before running away because he was on probation for armed robbery. He explained that he was picked up by his mother who, approximately 20 minutes later, brought him to the Town of Colonie Police Department (hereinafter CPD) after his mother was contacted by a detective. Carpenter spoke to law enforcement and gave consent to search his phone. Carpenter testified that he and the victim knew defendant because the victim had "stained" defendant twice in the prior two years.

An investigator for the State Police testified that the Forensic Investigation Unit went to the crime scene at 1:30 a.m. and, after the initial walkthrough, the team found small metal fragments and cartridge cases that were later collected. The head stamp on the cartridge cases, which usually identifies the caliber and round of the bullet, indicated that the bullets were .40 caliber. A canine handler testified that he and his canine looked for a gun at the crime scene. He observed a single set of footprints that led south of the crime scene, so he and the canine conducted a track. The footprints almost followed the bike path and ultimately went down an unplowed road at a clearing near the Norlite quarry, which the canine handler believed led to the exit of the quarry. A resident of a house located near the bike path turned over photographs from two trail cameras located on his property which, at 10:07 p.m., near the time of the shooting, captured a photograph of a man. A CPD detective recovered surveillance video from the Saratoga Sites Housing Complex, which is near the Norlite quarry. At approximately 10:44 p.m., the video shows a silver Chevrolet Impala with a white taxi light. The taxi company was contacted and the driver confirmed that she was driving a gray or silver Impala and recalled picking up a fare for three girls who had been drinking between 10:00 p.m. and midnight. While driving, she was flagged down by a man believed to be exiting Saratoga Sites who asked for a ride to the Rite Aid in the City of Watervliet, Albany County. The driver described the man as being "[r]eally sweaty" and recalled that he sat in the front seat and was wearing a dark coat with his hood up. She identified this man as defendant. The three girls in the taxi confirmed the driver's testimony. Two of the girls testified to knowing the man, who they both identified as defendant.

There was no suspect initially, so an investigator with the Computer Crimes Unit of the State Police conducted searches of the phones of Carpenter, Alston, Shumway and the victim for anything relevant in the hours preceding the shooting. An advanced search of the victim's phone could not be completed due to physical damage, but the investigator could identify the phone number. There was lengthy testimony regarding the very extensive investigation into cell phone records and we will endeavor to touch on what we view to be the most significant portions of that testimony. It was ultimately determined that the victim's carrier for his cell phone was Verizon Wireless and, leading up to the time of his death, the victim was conversing with someone using a phone number ending in 6542 (hereinafter the unidentified phone number) regarding a plan to meet on the bike path. The unidentified phone number was ultimately sold to TextNow, which furnished the CPD with call and text message records as well as IP session logs pursuant to a warrant. The day before the murder, a text message was sent from the unidentified phone number to the victim's phone number confirming that it was the victim who was receiving the text messages from the unidentified phone number. The next morning, the victim indicated that he needed two ounces of marihuana. At 8:12 p.m., the unidentified phone number stated, "[m]eet on the bike path at 10," and instructed the victim not to bring anyone with him. There appeared to be a discussion of where exactly to meet and then, after 10:05 p.m., the victim's phone had no more live messages.

An employee of TextNow testified virtually that TextNow is an application that can be downloaded on smartphones, tablets or by computer, and it gives a person a real phone number, picked by the user, in the United States or Canada that allows a person to text for free. The TextNow employee provided records for the unidentified phone number that revealed that, around the time period of the murder, the unidentified phone number connected to the Internet using two IP addresses – one registered to Time Warner Cable and the other registered to Verizon Wireless. A subpoena was served on Time Warner, which identified that the IP address belonged to defendant's stepfather and provided his residence address, which police learned that he shares with defendant's mother. Verizon Wireless was also subpoenaed to provide the phone numbers using the Verizon Wireless IP address at certain time periods within the time frame that the unidentified number was using it. From this information, a phone number that was most frequently using the Verizon Wireless IP address was identified, which was determined to be registered to defendant. A search warrant was issued to Verizon Wireless, the carrier for defendant's cell phone, seeking various account records. Katherine Mooar, an analyst, then testified that she was tasked with looking at the location data for the victim's and defendant's phones. Mooar generated a report of the "mapping product" of the phones with which she tracked the location of defendant's cell phone based on its connection to cell towers between 7:31 p.m. and 11:46 p.m. on the night of the murder. At various times between 9:30 p.m. and 10:06 p.m., both phones were using cell towers near each other and the crime scene. After 10:06 p.m., the victim's phone number ceased utilizing cell towers because it was either powered off or destroyed. Between 10:07 p.m. and 11:46...