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."
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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.
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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 out3 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]).
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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.
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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
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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
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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