                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: April 9, 2015                       105303
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

JARRIN Q. RANKIN, Also Known
   as FAT BOY,
                    Appellant.
________________________________


Calendar Date:     February 17, 2015

Before:     McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                               __________


         George P. Ferro, Albany, for appellant.

      D. Holley Carnright, District Attorney, Kingston (Joan
Gudesblatt Lamb of counsel), for respondent.

                               __________


Egan Jr., J.

      Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered August 24, 2012, upon a verdict
convicting defendant of the crimes of criminal possession of a
weapon in the second degree (two counts) and criminal possession
of a weapon in the third degree.

      Defendant, also known as Fat Boy,1 was indicted and charged
with two counts of criminal possession of a weapon in the second


     1
        Although defendant is referred to throughout the record
as "Phat Boy," the indictment lists defendant's alias as "Fat
Boy."
                               -2-                105303

degree and one count of criminal possession of a weapon in the
third degree. The charges stemmed from an incident that occurred
on November 21, 2009 on Henry Street in the City of Kingston,
Ulster County, during the course of which Curtis Williams, also
known as Black, was shot in the face. According to Charles King
Jr., he and his brother, Lee Gray, encountered Williams on the
street shortly before the shooting, at which time Williams
indicated that he had a problem with "Phat Boy."2 After speaking
with Williams, King and Gray continued walking and thereafter
came upon defendant outside of 34-36 Henry Street, at which time
they advised defendant "that Black said he was going to shoot
him." In response, defendant said, "Ain't nobody going to do
nothing to me or hurt me," pulled out a gun, walked around to the
corner of the house and cocked the weapon. As Williams
approached the residence, defendant said, "This is how you want
to take it? This is how far you want to go with it?" Williams
then opened his coat, pulled out a sawed-off shotgun and fired a
round. As King and his brother ran for cover, King saw defendant
fire two or three shots in Williams' direction. Williams was
admitted to a local hospital with a gunshot wound to the face,
and police thereafter recovered, among other things, a 12-gauge
shotgun and various shell casings from the scene of the shooting.

      Two days after the shooting, King gave an oral statement to
the police and, after reviewing multiple mug shots, positively
identified defendant as the individual who possessed a hand gun
on the day in question and fired that weapon in the direction of
Williams. The following day, defendant was arrested and, after
being advised of his Miranda rights, spoke with detectives and
admitted that he had possessed and fired a gun at the relevant
point in time in an effort to protect himself from Williams.
King subsequently testified before an Ulster County grand jury in
January 2010 and, three weeks later, was shot and killed by




     2
        Although King did not know defendant's "government name,"
the record makes clear that defendant and Phat Boy are one and
the same individual.
                               -3-               105303

defendant's brother, Trevor Mattis.3

      Defendant's subsequent motion to suppress his oral
statement to the police and to exclude both King's photo
identification of him and resulting grand jury testimony was
denied in all respects. Following a jury trial, defendant was
found guilty as charged and thereafter was sentenced to a prison
term of 15 years followed by five years of postrelease
supervision.4 This appeal by defendant ensued.

      We affirm. Initially, we discern no error in County
Court's decision to allow the People to utilize King's grand jury
testimony as part of their case-in-chief. As summarized in
People v Smart (23 NY3d 213 [2014]), "[u]nder the Sixth Amendment
of the Federal Constitution and article I, § 6 of the State
Constitution, a criminal defendant has the right to be confronted
with the witnesses against him or her. The confrontation right
is critical to the fairness of a trial because it ensur[es] the
reliability of the evidence against a criminal defendant by
subjecting it to rigorous testing in the context of an adversary
proceeding before the trier of fact. Given this important right,
an unavailable witness's grand jury testimony, which by
definition has not been subjected to confrontation, generally may
not be admitted at trial on the People's direct case. However,
where it has been shown that the defendant procured the witness's
unavailability through violence, threats or chicanery, the
defendant may not assert either the constitutional right of
confrontation or the evidentiary rules against the admission of
hearsay in order to prevent the admission of the witness's out-


     3
        Mattis thereafter was convicted of, among other things,
murder in the first degree and conspiracy in the second degree in
connection with King's death (People v Mattis, 108 AD3d 872
[2013], lvs denied 22 NY3d 957 [2013]).
     4
        In the interim, defendant was convicted of conspiracy in
the second degree for his role in King's murder and was sentenced
– as a prior violent felony offender – to a lengthy period of
incarceration (People v Rankin, 117 AD3d 1231 [2014], lvs denied
24 NY3d 1087 [2014]).
                              -4-                105303

of-court declarations, including the witness's grand jury
testimony" (id. at 219-220 [internal quotation marks and
citations omitted]; see People v Geraci, 85 NY2d 359, 365-366
[1995]; People v Encarnacion, 87 AD3d 81, 86 [2011], lv denied 17
NY3d 952 [2011]). Before such testimony may be admitted, "the
People must demonstrate by clear and convincing evidence that the
defendant engaged in misconduct aimed at least in part at
preventing the witness from testifying and that those misdeeds
were a significant cause of the witness's decision not to
testify" (People v Smart, 23 NY3d at 220; see People v Ali, 123
AD3d 1137, 1137-1138 [2014]; People v Encarnacion, 87 AD3d at 86-
87). In this regard, the trial court "may infer the requisite
causation from the evidence of the defendant's coercive behavior
and the actions taken by the witness in direct response to or
within a close temporal proximity to that misconduct" (People v
Smart, 23 NY3d at 220-221; see People v Geraci, 85 NY2d at 370-
371; see also People v Leggett, 107 AD3d 741, 742 [2013], lv
denied 23 NY3d 964 [2014]).

      Here, the People submitted, among other things, audio
recordings of phone calls made between December 2009 and January
2010 while defendant, who was identified as a member of the
Bloods street gang, was in jail awaiting trial in this matter.
As may be discerned from the subject phone calls, defendant and
certain of his cohorts initially believed that it was Gray who
had been in contact with the police and, in that regard,
defendant warned that Gray "better not be saying nothing to them
f***ing . . . police." Similarly, in a phone call with a fellow
gang member, defendant – in an apparent reference to King and
King's father – stated, "[M]ake sure them [expletive] ain[']t
doing nothing either you hear[]?"5 After defendant was advised
that it was King who had implicated him in the shooting,
defendant stated, "And tell . . . [Gray] that since that is his


    5
        In this and many of the other calls, the individuals in
question were identified either by description or their street
names. Accordingly, the actual identity of the described
individuals, as well as their alleged affiliation with the Bloods
gang, was provided by various members of the local police
department.
                              -5-                105303

brother that it[']s his job to make sure that s*** don't happen.
And if it happens then he's going to be held accountable for it."
Similarly, in an apparent reference to King, defendant warned,
"[M]ake sure that son stay where the f*** he at and don't
resurface, you hear me?" Finally, during a phone call with
Mattis, Mattis assured defendant that he had "everything under
control" and that he was "gonna go to bat" for defendant. When
defendant asked Mattis if Mattis was aware that defendant had
been indicted, Mattis replied, "Yeah I know all that[.] [T]hat's
why I'm doing what I'm doing now." Less than two weeks later,
King was shot to death and, as noted previously, Mattis
subsequently confessed to and was convicted of King's murder.

      These and other statements made by defendant during the
recorded phone calls, coupled with defendant's (and at least one
of the caller's) known association with the Bloods gang,
defendant's corresponding motivation to prevent King from
testifying and King's ensuing demise, "provide[] an example of
the type of circumstantial proof that suffices to satisfy the
[People's] foundational burden" (People v Geraci, 85 NY2d at
369). In short, based upon our review of the evidence adduced at
the subject hearing, we are satisfied that the People
demonstrated, by clear and convincing evidence, that "defendant
either was responsible for, or acquiesced in, the conduct that
rendered [King] unavailable for trial" (People v Ali, 123 AD3d at
1138). Accordingly, County Court did not err in allowing the
People to utilize King's grand jury testimony on their direct
case.

      Nor are we persuaded that County Court erred in denying
defendant's motion to suppress his oral statement to police.
"The People bore the burden of proving the voluntariness of
defendant's statement[] beyond a reasonable doubt, including that
any custodial interrogation was preceded by the administration
and defendant's knowing waiver of his Miranda rights.
Determining whether a statement is voluntary is a factual issue
governed by the totality of the circumstances [and] [t]he
credibility assessments of the suppression court in making that
determination are entitled to deference" (People v Fisher, ___
AD3d ___, ___, 2015 NY Slip Op 01836, *2 [2015] [internal
quotation marks and citations omitted]). Here, two detectives
                              -6-                105303

from the Kingston Police Department testified as to the
circumstances under which defendant was apprehended, transported
to the police station and questioned. In this regard, one of the
detectives testified that he advised defendant of his Miranda
rights prior to any questioning, and that defendant, in turn,
orally indicated that he understood his rights and was willing to
speak with the detective. According to the detective who
interviewed defendant, defendant thereafter gave an oral
statement wherein he placed himself at the scene of the November
2009 shooting, indicated that someone came after him with a gun
and asserted that he "did what he had to do to protect himself."
Specifically, the detective testified that defendant
"demonstrated with one of his hands how he held [the] gun and
that he fired [the] gun in hopes of scaring [the victim]."
County Court fully credited the relevant detective's testimony on
this point and, upon reviewing the transcript of the suppression
hearing, we discern no basis upon which to disturb County Court's
findings as to the voluntariness of defendant's statement.
Contrary to defendant's assertion, the fact that he did not
execute a written waiver of his Miranda rights does not
invalidate his oral waiver or otherwise render his statement
involuntary (see People v Dobbins, 123 AD3d 1140, 1140 [2014];
People v Wilkinson, 120 AD3d 521, 521 [2014]; People v Thornton,
87 AD3d 663, 664 [2011], lv denied 18 NY3d 862 [2011]; People v
Saunders, 71 AD3d 1058, 1059-1060 [2010], lv denied 15 NY3d 757
[2010]).

      Finally, we find no merit to defendant's claim that King's
photo identification of him resulted from unduly suggestive
procedures. Based upon King's physical description of "Phat
Boy," King was presented with a book containing multiple mug
shots of black males and was "asked . . . to look through the
photographs . . . to see if he recognized the person who shot [in
the direction of the victim]." After reviewing a number of
photographs, King selected defendant's picture. To our analysis,
the fact that King was asked to review only approximately 20 of
the photos contained in the mug shot book does not establish that
the identification procedures employed were unduly suggestive.
In any event, given that King had known "Phat Boy" for "a month
or two" prior to the shooting, his resulting photographic
identification of defendant was merely confirmatory (see People v
                              -7-                  105303

Stevens, 87 AD3d 754, 755-756 [2011], lvs denied 18 NY3d 861
[2011]). Under these circumstances, County Court properly denied
defendant's motion to suppress King's identification.

     McCarthy, J.P., Devine and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
