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This memorandum is uncorrected and subject to revision before

publication in the New York Reports.

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No. 163 

The People &c.,

 Respondent,

 v.

Thomas Horton,

 Appellant.

Tyson Blue, for appellant.

Christopher Bokelman, for respondent.

MEMORANDUM:

The order of the Appellate Division should be affirmed.

In June of 2010, investigators in the Wayne County

Sheriff's Office planned a controlled, recorded drug purchase. 

The investigators recruited a young woman (hereafter, the

confidential informant) to make the actual buy. She was wired

with a microphone, and a camera was concealed in the back seat of

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her car. On June 10th, she arranged a meeting, apparently with

defendant Thomas Horton, and drove to a parking lot to rendezvous

with him. When defendant arrived, he was accompanied by another

man, Clarence Jackson, who sold the confidential informant a

quantity of cocaine, a transaction captured by the hidden camera

and recorded by the wire.

On or about April 21, 2011, Jackson was arrested and

charged with sale of a controlled substance. That same day, he

went to defendant's house with a copy of the videotape; Jackson

explained that he had just been arrested for the sale and that he

planned to take a plea. Later that day, the confidential

informant contacted one of the investigators who had worked with

her on the buy to report that defendant had begun "outing" her on

Facebook. In addition to identifying her as an informant,

defendant uploaded a clip of the surveillance video to the

website YouTube, and provided a link to it on his Facebook page. 

The video spawned a flurry of discussion and recriminations from

defendant and his Facebook friends. Many statements were made by

defendant and others denouncing snitches in general and the

confidential informant specifically, including warnings that

"Snitches get stitches" and "I hope she gets what's coming to

her."

On April 25, 2011, defendant was arrested for fourthdegree witness tampering, which provides, as relevant, that

"[a] person is guilty of tampering with a witness when,

knowing that a person is or is about to be called as a

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witness in an action or proceeding, (a) he wrongfully

induces or attempts to induce such person to absent

himself from, or otherwise to avoid or seek to avoid

appearing or testifying at, such action or proceeding"

(Penal Law § 215.10).

On June 27, 2011, defendant was tried by jury in Town Court and

convicted as charged; he was sentenced to one year in Wayne

County jail. Defendant appealed to County Court, arguing that

there was insufficient evidence that he attempted to prevent the

confidential informant from testifying, or that he had any

knowledge that she would testify in any proceeding.

County Court affirmed. The judge noted that

defendant's best friend, Jackson, was charged with a drug sale,

and knew that the confidential informant had worked with police

to secure the charge; that defendant made Facebook posts

identifying the confidential informant; and that the confidential

informant was able to see these posts and the comments from other

Facebook users that the posts generated. A Judge of this Court

granted defendant leave to appeal (21 NY3d 1074 [2013]), and we

now affirm.

The evidence, seen in the light most favorable to the

People, is sufficient to establish that defendant knew that the

confidential informant might testify in a proceeding, and that he

wrongfully sought to stop her from doing so. After learning

about Jackson's arrest and the confidential informant's role as a

witness against Jackson and, potentially, himself, defendant

immediately posted communications on the internet that the jury

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might have reasonably inferred were coded threats that were

intended to induce the confidential informant not to testify. 

And in addition to the public postings on Facebook and YouTube,

defendant was in contact via Facebook messages (which essentially

act as email on the website) with the confidential informant and

her mother.

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Order affirmed, in a memorandum. Chief Judge Lippman and Judges

Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Decided October 21, 2014

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