                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 3, 2015                    106525
________________________________

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

PAUL J. TAYLOR,
                    Appellant.
________________________________


Calendar Date:    October 21, 2015

Before:   Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ.

                              __________


     Paul J. Connolly, Delmar, for appellant.

      Kristy L. Sprague, District Attorney, Elizabethtown (James
E. Martineau Jr. of counsel), for respondent.

                              __________


Lahtinen, J.P.

      Appeal from a judgment of the County Court of Essex County
(Meyer, J.), rendered December 23, 2013, upon a verdict
convicting defendant of the crimes of murder in the second
degree, gang assault in the first degree and criminal possession
of a weapon in the third degree.

      In August 2012, defendant, together with Michael Rivers and
Scott Denno, allegedly caused the death of the victim, Robert
Rennie, by repeatedly and viciously kicking him as he lay on a
street in the Village of Keeseville, Essex County. Defendant was
indicted on charges of murder in the second degree, gang assault
in the first degree and criminal possession of a weapon in the
                              -2-                106525

third degree. A jury convicted him on all three counts.1 He was
sentenced, as a second felony offender, to concurrent prison
terms of 25 years to life on the murder and gang assault
convictions and, consecutive thereto, 3½ to 7 years for the
criminal possession of a weapon conviction. Defendant appeals.

      Defendant initially argues that his murder conviction was
not supported by legally sufficient evidence and was against the
weight of the evidence. When considering the legal sufficiency
of the evidence, we view the evidence in the light most favorable
to the People and evaluate whether "there is any valid line of
reasoning and permissible inferences which could lead a rational
person to the conclusion reached by the jury on the basis of the
evidence at trial and as a matter of law satisfy the proof and
burden requirements for every element of the crime charged"
(People v Bleakley, 69 NY2d 490, 495 [1987] [citation omitted];
see People v Ramos, 19 NY3d 133, 136 [2012]). In a weight of the
evidence review, where, as here, a different conclusion would not
have been unreasonable, we "must, like the trier of fact below,
weigh the relative probative force of conflicting testimony and
the relative strength of conflicting inferences that may be drawn
from the testimony" (People v Romero, 7 NY3d 633, 643 [2006]
[internal quotation marks and citations omitted]). The focus of
defendant's argument is that the evidence did not demonstrate
that he intended to kill the victim. "Because intent is an
invisible operation of the mind, direct evidence is rarely
available" (People v Rodriguez, 17 NY3d 486, 489 [2011] [internal
quotation marks, brackets and citations omitted]) and, thus, "it
may be inferred from a defendant's conduct and the surrounding
circumstances" (People v Callicut, 101 AD3d 1256, 1258 [2012], lv
denied 20 NY3d 1096 [2013] [internal quotation marks and citation
omitted]).

      Proof at trial included that defendant, Denno and Rivers
believed that the victim had been physically assaulting Rivers'
cousin, Samantha Lacroix. Lacroix had an ongoing relationship


    1
        In separate trials, Rivers and Denno were each convicted
of manslaughter in the first degree and gang assault in the first
degree.
                              -3-                106525

with the victim, she had also recently had a brief relationship
with defendant, and defendant desired to continue his
relationship with Lacroix. Defendant, Denno, Rivers and Rivers'
wife – Angela Rivers – were in the vicinity of Lacroix's
apartment when Rivers and Denno began a physical altercation with
the victim. As Rivers and the victim started to fist fight,
defendant reportedly attacked the victim from behind knocking him
to the ground and defendant – knowing that he was wearing steel-
toed boots – commenced kicking the victim. Rivers and Denno
joined the kicking, although their kicks were described by Angela
Rivers as being not as violent as defendant's. Eventually Rivers
and Denno stopped kicking the victim, but defendant continued to
kick the victim, disregarding the admonition of the others at the
scene to stop, including a warning that he was going to kill the
victim. Defendant repeatedly kicked the victim with such force
that the victim's body would come off the ground. Defendant was
about 6 feet 4 inches tall and weighed well over 200 pounds,
whereas the victim was 5 feet 7 inches tall and weighed less than
120 pounds. Although the victim was able to leave the immediate
area when the attack ceased, he quickly succumbed to his injuries
and died. Following the attack, defendant bragged about how hard
he had kicked the victim with his steel-toed boots, and he told
Lacroix later that night that she would not have to worry about
the victim knocking on her door anymore. Blood on defendant's
boot was consistent with the victim's DNA.

      The forensic pathologist who performed an autopsy on the
victim described the victim's body as having what appeared to be
a series of footwear impressions. He stated that the victim had
a large quantity of blood – about a quarter of all his blood – in
his abdominal cavity. The victim's many injuries included, among
others, collapsed lungs, over 20 fractures of his ribs and a
fractured thyroid cartilage in his neck. The various lacerations
suffered by the victim included a five-inch tear of his liver.
The pathologist opined that the victim's cause of death was
internal hemorrhage and the collapse of both lungs due to
multiple traumatic blunt force injuries. He stated that, without
medical attention, both injuries could have independently caused
the victim's death and that, while the victim could have walked a
short distance after sustaining the injuries, he would not have
survived for more than 15 minutes. Viewed most favorably to the
                              -4-                106525

People, the evidence regarding the circumstances of the attack,
the nature of defendant's repeated kicking of the incapacitated
victim with steel-toed boots, and the severity of the injuries
suffered by the victim provided sufficient grounds for the jury
to infer that defendant intended to kill the victim (see People v
Hill, 115 AD2d 239, 239 [1985], lv denied 67 NY2d 884 [1986]).
Moreover, after viewing the evidence in a neutral light while
deferring to the jury's credibility determinations, we are
unpersuaded that the verdict was against the weight of the
evidence.

      Next, defendant asserts that Angela Rivers was permitted to
improperly bolster her testimony. "The term 'bolstering' is used
to describe the presentation in evidence of a prior consistent
statement – that is, a statement that a testifying witness has
previously made out of court that is in substance the same as his
or her in-court testimony" and "such statements are generally
excluded by the hearsay rule, unless a hearsay exception is
applicable" (People v Smith, 22 NY3d 462, 465 [2013]; see People
v Ludwig, 24 NY3d 221, 230 [2014]; People v Buie, 86 NY2d 501,
509-510 [1995]). Here, Angela Rivers gave three statements to
police, two shortly after the incident in which she did not
mention what happened to the victim and a third about a month
later that included information about the victim. At trial, she
acknowledged, without objection from defendant, that she had
given the first two statements and that she had omitted in those
statements information about the victim. The People then
elicited that she had given a third statement, and she was asked
whether she "put in there what happened to [the victim] on Mill
Hill Road?" Over defendant's objection on the ground of
bolstering, she answered simply, "Yes, I did." She did not
testify about the content of her prior third statement. This
limited response was not hearsay and did not constitute
bolstering (see People v Hampton, 121 AD3d 1538, 1539 [2014], lv
denied 24 NY3d 1084 [2014]). Nor was it bolstering to
acknowledge – without providing information about what was said –
that she had testified in the earlier trials of Denno and Rivers.

      County Court did not err in permitting the People to cross-
examine a State Police investigator, who was called by defendant
as a witness, regarding certain statements made to the
                              -5-                106525

investigator by Denno. Although testimonial statements by a
nontestifying witness are inadmissible as violative of the
Confrontation Clause, "a defendant can open the door to the
admission of evidence otherwise barred by the Confrontation
Clause" (People v Reid, 19 NY3d 382, 387-388 [2012] [internal
quotation marks and citation omitted]). Denno, a witness to and
participant in the crimes, gave three statements to the
investigator, and Denno invoked his Fifth Amendment right not to
testify at defendant's trial. Defendant called the investigator
as a witness to elicit information about Denno's second
statement, which was favorable to defendant. This opened the
door for the People to cross-examine the investigator about the
content of the two other Denno statements, which provided context
and were less favorable to defendant.

      We are unpersuaded by defendant's argument that it was
reversible error for County Court to deny his challenge for cause
to a prospective juror. "When a prospective juror indicates that
he or she may not be able to remain impartial in the event the
defendant decides not to testify, the potential juror may be
selected to serve only if the court elicits an unequivocal
guarantee that he or she will follow the court's instructions
regarding the law and render an impartial verdict" (People v
Boddie, 126 AD3d 1129, 1131 [2015] [citations omitted]). Defense
counsel asked a prospective juror whether she "might take a
negative inference" if defendant did not testify, and the juror
responded: "I can't say that for sure, but I think I would
question to myself why he wouldn't testify [on] his own behalf."
County Court then stated to the prospective juror: "If you were
instructed on what the law is, that the law is that you cannot
make any unfavorable inference against him if he fails to testify
or even if he does not put on any evidence at all, would you
follow that law?" The prospective juror stated: "I would have
to." This constituted an "unequivocal assurance" from the
prospective juror that she would be "able to reach a verdict
based entirely upon the court's instructions on the law" (People
v Bludson, 97 NY2d 644, 646 [2001]; see People v Chambers, 97
NY2d 417, 419 [2002]).

      Defendant contends that his arrest was unlawful in that the
arresting officer lacked probable cause for the arrest and, thus,
                              -6-                106525

County Court should have granted his motion to suppress evidence
seized as a result of the arrest. "[E]ven if an arresting officer
lacks personal knowledge sufficient to establish probable cause,
the arrest will be lawful if the officer acts upon the direction
of or as a result of communication with a superior or fellow
officer or another police department provided that the police as
a whole were in possession of information sufficient to
constitute probable cause to make the arrest" (People v Ramirez-
Portoreal, 88 NY2d 99, 113 [1996] [internal quotation marks,
brackets and citations omitted]; see People v Stroman, 106 AD3d
1268, 1269 [2013], lv denied 21 NY3d 1046 [2013]). As relevant
here, the arresting officer, John Donohue, testified at the
suppression hearing that, at the same time that he was
interviewing defendant, other officers involved in the
investigation were interviewing Lacroix. Donohue received a
phone call from one of the other officers informing him that
Lacroix was in the process of giving a sworn statement that
defendant had sexually assaulted her and, based upon such
information, Donahue arrested defendant. Although Donohue could
not recall which officer had contacted him with the information,
the evidence at the hearing sufficiently established that the
information was relayed by a fellow officer who, in turn,
obtained the information from a reliable means, i.e., a police
interview of the person claiming to have been sexually assaulted
by defendant (see e.g. People v Ketcham, 93 NY2d 416, 419-421
[1999]).

      Finally, with regard to defendant's sentence, the People
concede – and we agree – that defendant's sentence for criminal
possession of a weapon was statutorily required to run
concurrently with the other sentences under the circumstances
(see Penal Law § 70.25 [2]; People v Ross, 34 AD3d 1124, 1126
[2006], lv denied 8 NY3d 884 [2007]). Otherwise as to
sentencing, defendant was properly sentenced as a second felony
offender and, in light of his criminal record and the brutal
nature of the crime, we find no abuse of discretion or
extraordinary circumstances warranting a modification thereof
(see e.g. People v Winchell, 129 AD3d 1309, 1313 [2015], lvs
denied 26 NY3d 973 [2015]).
                              -7-                  106525

     Egan Jr., Lynch and Devine, JJ., concur.



      ORDERED that the judgment is modified, on the law, by
directing that defendant's sentence for criminal possession of a
weapon in the third degree shall run concurrently with the other
sentences, and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
