The People, Respondent,v.Thomas Horton, Appellant.BriefN.Y.September 16, 2014 COURT OF APPEALS STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK -vs.- APL-2013-00271 THOMAS HORTON, APPELLANT. ___________________________________________________ BRIEF OF APPELLANT Tyson Blue 4064 County Line Road Macedon, New York 1450 585-944-4825 TABLE OF CONTENTS Page Table of Authorities 3 Questions Presented 4 Statement of Facts 5 Arguments and Citations of Authorities. . . . . . . .. . . . . . . . . . . . . . . . . . . . .6 POINT I THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE JURY’S VERDICT, WHICH WAS ALSO AGAINST THE WEIGHT OF THE EVI- DENCE. Conclusion 10 2 TABLE OF AUTHORITIES Cases Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Lovell v. City of Griffin, 303 U.S. 444, 450, 58 S. Ct. 666, 668 82 L.Ed 949. . . . .17 People v. Aponte, 135 A.D.2d 544, 521 N.Y.S.2d 766 (2d Dept. 1987) . . . . . .. . . 12 People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761 (1987). . . . . . . . . . . . . . . . 13 People v. Dietze, 75 N.Y. 2d 47, 51 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 People v. Giuliano, 65 N.Y.2d 766, 492 N.Y.S.2d 939). . . . . . . . . . .. . . . . . . . . . 12 People v. Lurk, 2013 WL 6500893 (N.Y. Sup.App.Term) . . . . . . . . . . . . . . . . . . . 17 People ex rel. MacCracken v. Miller, 291 N.Y. 55. . . . . . . . . . . . . . . . . . . . . . . . . 13 People v. Plummer, 44 A.D.2d 573, 353 N.Y.S.2d 51 (2d Dept. 1974). . . . . . . . . . 8 People v. Rice, 122 A.D.2d 860, 505 N.Y.S.2d 726 (2d Dept. 1986). . . . . . . . . . .11 People v. Welte, 31 Misc. 3d 867, 920 N.Y.S.2d 627, 2011 NY Slip Op. 21125 (NY Just. Ct. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 State v.Kilburn, 151 Wash.2d at 43, 84 P.3d 1215. . . . . . . . . . . . . . . . . . . . . . . . . .17 State v. Schaler, 169 Wash.2d at 283, 236 P.3d 858. . . . . . . . . . . . . . . . . . . . . . . . 17 Statutes C.P. L. § 470.15 (4)(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 P.L. § 215.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 3 QUESTIONS PRESENTED 1. Whether the evidence presented at trial was sufficient to prove the Appellant guilty of the crime with which he was charged, and whether the verdict was consistent with the weight of the evidence. Answer in the Court Below: Not addressed. 4 STATEMENT OF FACTS This is an appeal from an Order of Galen Town Court entered on September 28, 2011 (Appendix, p.3, hereinafter, e.g., A-3). This order sentenced the Appel- lant herein, Thomas Horton, to a determinate term of one year in the Wayne County Jail on conviction of a charge of Tampering with a Witness in the Fourth Degree. The facts of the case are simple. The Appellant was charged with Tampering with a Witness in the Fourth Degree in Galen Town Court. These charges arose from an incident which allegedly took place between April 21 and April 25, 2011, in Clyde. The Appellant was alleged to have posted a video of Amber Shove, a confidential informant for Wayne County’s Drug Task Force, on the online site YouTube and having made disparaging remarks about her being a snitch on his Facebook page, with the intent of allegedly inducing her not to testify at a trial. The matter came on for a jury trial before Hon. Lester Carr on June 27, 2011. Investigators Roger LeClair and Scott Knapp testified for the People (Trial Transcript, pp. 4-38); Mr. Horton testified for the defense (Ibid., pp. 40-46). Ms. Shove did not testify. At the conclusion of the trial, Mr. Horton was found guilty by the jury. The matter was adjourned for a pre-sentence investigation. On September 28, 2011. At that time, Appellant’s counsel requested that Mr. Horton be sentenced to time served, a request which the Court denied, sentencing him to one year in the Wayne 5 County Jail. Notice of Appeal was timely filed in this matter on September 30, 2011, (A-1) and this appeal followed. This sentence was affirmed by the Wayne County Court, in a Memorandum-Decision entered January 30, 2013. An Applica- tion for Leave to Appeal to this Court was timely filed and served timely on all parties, and a Certificate Granting Leave was entered by this Court (Hon. Robert A. Smith, J.) on September 17, 2013. 6 ARGUMENTS AND CITATIONS OF AUTHORITIES POINT I THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE JURY’S VERDICT, WHICH WAS ALSO AGAINST THE WEIGHT OF THE EVI- DENCE. This appears to be a case of first impression, as a fairly extensive research session did not turn up any case law on the question of whether or not posting in- formation about a person on a social networking website could be considered tam- pering with a witness. However, that certainly does not mean that the point cannot be argued. As will be shown below, the evidence in the People’s case does not sup- port the verdict rendered either by sufficiency or its weight. Sufficiency of the Evidence. The elements of the crime are set forth in Penal Law § 215.10, to wit: “A person is guilty of tampering with a witness [in the fourth degree] when, knowing that a person is or is about to be called as a 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, or (b) he knowingly makes any false statement or practices any fraud or deceit with intent to affect the testimony of such person.” Since there is no allegation that Mr. Horton made or caused to be made any false or fraudulent statement in this matter -- since Ms. Shove was, indeed, an in- formant -- we will limit our discussion to the elements of subsection (a) of the stat- ute. 7 Where the evidence does not indicate that a defendant is aware that a person who was the subject of his alleged activity was then a witness in a pending pro- ceeding and did not reliably show any connection between him and anyone who might have been guilty of tampering with a witness, then a conviction for the crime cannot be sustained (People v. Plummer, 44 A.D.2d 573, 353 N.Y.S.2d 51 (2d Dept. 1974)). The only testimony regarding Ms. Shove’s being a witness in a pending mat- ter came from Inv. LeClair, who testified on cross-examination that she had testi- fied before the Grand Jury in regard to Mr. Jackson and that he expected to do so again (Return, pp. 65-66). He further stated that charges had been filed against Mr. Horton and that she would testify in that case, as well. However, there was no testimony that Mr. Horton was aware of Ms. Shove’s testimony, or that he was aware of charges against him. Indeed, as counsel stated during the oral motion for a trial order of dismissal, charges had not yet been filed, to which the People made no objection or any offer of proof to the contrary (Tran- script, p. 75). Mr. Horton testified to being aware of the charges against Mr. Jackson, and was aware of Ms. Shove’s involvement in that case as an informant, not as a wit- ness, but he further testified that he had been told by Mr. Jackson that Mr. Jackson had entered a plea in his case (Ibid., p. 79). 8 Mr. Horton also testified to watching the video of the June 10 incident, and testified that it was posted on YouTube and subsequently discussed on his Face- book page (Transcript, p. 79). He further testified that he did that because he “felt that she ruined someone’s life” (Ibid., p. 80). The Assistant District Attorney cross- examined Mr. Horton, and asked him about a pending Federal indictment in Roch- ester for “distributing from June 2010 to November 2010” (Ibid., p. 83), but noth- ing was stated which tied this pending Federal matter to the events involved in the case at bar, nor was any evidence placed on the record that Ms. Shove was a wit- ness in, or was in any way involved with that matter. In order to find that the evidence was sufficient to support the verdict, then this Court must determine whether there is any valid line of reasoning and permis- sible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial (Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499). If so, then the verdict would be upheld on that basis. In the case at bar, none of the evidence indicates that Mr. Horton knew that Ms. Shove was a witness in any pending matter --rather the opposite, since Mr. Jackson had informed him that he was pleading guilty, which would obviate the need for any testimony from anyone. The only pending matter about which he was asked was, as previously mentioned, the Federal matter in Rochester, and no men- tion was made of Ms. Shove’s involvement, if any, with that matter. 9 As argued in the County Court, the situation is similar to that in People v. Welte, 31 Misc. 3d 867, 920 N.Y.S.2d 627, 2011 NY Slip Op. 21125 (NY Just. Ct. 2011), in which a defendant was charged with criminal contempt and stalking after allegedly violating a “no contact” order of protection by accessing the Facebook “friends” list of the alleged victim’s mother and communicating with those people. In that case, the Court held that the accusatory instruments “were insufficient on their face, in that they did not allege that the defendant was previously ordered to refrain from the action in question, specifically contact- ing family and/or friends of the complainant on Facebook.” In the Welte decision, the court held that an information “must set out evi- dentiary allegations that are non-hearsay in nature, which, if true, would establish every element of the offense charged and that the defendant committed the of- fense.” The information in the case at bar fails to allege anything which would vio- late the applicable statute, and is therefore insufficient on its face. Although the crime in the Welte case is a different one, the principle, we maintain, is the same. In People v. Rice, 122 A.D.2d 860, 505 N.Y.S.2d 726 (2d Dept. 1986), the Second Department reversed a conviction of attempted murder in the second de- gree, based upon the failure of the evidence to sufficiently support the contention that the defendant possessed the necessary intent to kill the victim. Intent is also an essential element of the charge of Tampering with a Witness in the Fourth Degree, and we submit that there is, as previously stated, no evidence of any intent on Mr. Horton’s part to wrongfully -- or otherwise -- induce Amber Shove to absent her- 10 self from, or otherwise to avoid or seek to avoid appearing or testifying at a trial or other proceeding. Nor is there any showing that he knew that Ms. Shove was or was about to be called as a witness in such a proceeding. Indeed, the evidence is unrefuted that Mr. Horton knew that there would be no trial in Mr. Jackson’s case. These are both essential elements of this charge, and the People’s failure to prove either element would be fatal to the charge. Failure to prove both is doubly lethal. The Misdemeanor Complaint herein alleges the specific acts that Mr. Horton is accused of committing, to wit: “did cause or be caused (sic) the posting of a video entitled “Amber Shove snitchin1” on the website YouTube.com which is de- picting and disseminating evidence in a action and or proceeding regarding the fel- ony drug sales and felony drug possession of Clearance (sic)Jackson. Also the said defendant posted on the website, Facebook.com that Amber Shove is a snitch on several occasions between the above dates, all contrary to the provisions of the statute in such case made and provided.” Garbled grammar and syntax aside, there is nothing in the video or the vo- luminous Facebook printouts which mentions a pending trial. There is nothing threatening directed at Ms. Shove if she testifies or appears at trial. Indeed, as ar- gued below, by “outing” Ms. Shove online by posting the video -- such as it is -- and talking about her on Facebook, Mr. Horton would have appeared to have ex- hausted his quiver of ammunition, and would have nothing left with which to threaten her. Not only is there nothing in the evidence to support the People’s the- 11 ory; the theory doesn’t make sense in the face of the evidence. Nor is there any- thing whatsoever in the statute prohibiting the specific conduct alleged in this case. The charge is completely unsupported. The facts are much more consistent with Mr. Horton’s stated intent of reveal- ing Ms. Shove as a snitch than with the People’s theory of inducing her not to co- operate. If he has already done everything he is going to do, then there is no incen- tive on the part of Ms. Shove to get her to not cooperate with the pending matter -- he has already done everything. It is not a case such as People v. Aponte, 135 A.D.2d 544, 521 N.Y.S.2d 766 (2d Dept. 1987), where the facts are inconsistent with the defendant’s innocence and exclude to a moral certainty every other reasonable hypothesis (citing People v. Giuliano, 65 N.Y.2d 766, 492 N.Y.S.2d 939). The evidence of Mr. Horton’s un- derstanding that Mr. Jackson was going to plead, and that there would be no trial, evidence was was unrebutted by any evidence offered by the People, clearly dis- proves an essential element of the charge. The County Court erred in characterizing this as a “‘misplaced reliance’ on...alleged factual proof issues that were not elements of the crime charged”. The point of the argument was that the conduct alleged did not prove any element of the crime. The alleged posting of the video on YouTube, even without considering the lack of proof that Mr. Horton had anything to do with it, or the fact that there was no evidence that the posting happened within the court’s jurisdiction (to wit, 12 where is Cyberspace?), does not prove any element of the crime, nor does a group of people talking about snitches on Facebook in a manner which did not in any way threaten Ms. Shove. Even in cases where the evidence is legally sufficient, which is, from the tes- timony and evidence cited above, clearly not the case here – this Court may still modify a judgment of conviction “in the interest of justice” (C.P.L. § 470.15 (3)(c), cited in People v. Kidd, 76 A.D.2d 665, 431 N.Y.S.2d 542 (1st Dept. 1980)). This Court has the authority to reverse a judgment of conviction based upon a determi- nation that there is a lack of legally sufficient evidence (C.P.L. § 470.15 (4)(b)). We submit that this is such a case. When examined by these standards, it is virtually certain that Mr. Horton’s judgment of conviction should be reversed. Weight of the Evidence. Under the circumstances set forth in the previous section, we submit that an reversal would not be unreasonable in this case. This is the first test in re- viewing the weight of the evidence. However, to determine whether or not a ver- dict is supported by the weight of the evidence, then a court must go further and “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (See People ex rel. MacCracken v. Miller, 291 N.Y. 55, cited in People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761 (1987)). If the trier of fact has failed to give the evi- dence its proper weight, then the verdict should be set aside. 13 When this analysis is applied to the facts in the case at bar, it is clear that the weight of the credible evidence does not support a guilty verdict. The People’s the- ory of the case was that Mr. Horton, as the District Attorney argued, posted a video entitled “Amber Shove snitchin1” on YouTube and posted on his Facebook page that Ms. Shove was a snitch, all done in order to intimidate her and prevent her from testifying in a trial involving Mr. Jackson. However, when the evidence adduced at trial is weighed impartially, it does not support the People’s theory of the case. There was nothing to tie Mr. Horton conclusively to the crime. Although an attempt was made by way of hearsay evi- dence which was allowed over objection by the trial judge with the explanation “I believe that since the deputy did talk directly to Ms. Shove she explained what her feelings were” (Transcript, p.14), to show that the absent Ms. Shove felt threatened and intimidated, there was not a micron scintilla of admissible evidence to show that this came as a result of any action on Mr. Horton’s part. Nor is there any evidence of the necessary intent on Mr. Horton’s part to in- timidate Ms. Shove or to prevent her from testifying in the trial of Mr. jackson, of Mr. Horton, or of anyone else, for that matter. And although there is no statutory requirement that the conduct alleged be threatening per se, common sense dictates that in order to be intimidated, there must be some perceptible threat involved. The most logical way to do this would be to imply that if Ms. Shove were to testify in a proceeding, then the video would 14 be posted and her complicity revealed to the world at large. However, that is not what happened here. The video was posted and the discussion ensued. Mr. Horton had exhausted his arsenal ahead of time. This is far more consistent with a simple desire to let the community know that Ms. Shove was a snitch, and is not consis- tent with any intent to intimidate her. We submit that Mr. Horton’s testimony that he believed that there would be no trial in Mr. Jackson’s case, and that he had no intent to do anything other than to “out” Ms. Shove as a snitch, is actually more plausible, particularly in view of the way things turned out. Based upon all of the above, it is clear that the evidence in Mr. Horton’s case was legally insufficient to convict him, and was against the weight of the credible evidence. For both reasons, his conviction should be reversed. Constitutional Issues The First Amendment to the United States Constitution guarantees to all citi- zens the right to freedom of speech. That freedom has been curtailed to some ex- tent over the years, limiting its exercise in situations which would create “a clear and present danger” of harm, the classic example being that of shouting “Fire!” in a crowded theater. The interpretation of the statute involved in the case at bar urged by the People -- that there is no requirement in the statute that the conduct alleged need not be threatening carries with it the implication that anything could be construed 15 as a violation of the statute so long as someone is willing to state that they felt in- timidated by it. This is far too broad a reading of the statute. The vast majority of the Facebook postings offered in evidence at trial are clearly and inarguably protected speech. The greatest crimes committed therein are against grammar, syntax and spelling, not Amber Shove. The primary posting cited by the People as proof of Mr. Horton’s intent to intimidate Ms. Shove is the phrase “snitches get stitches”. The Urban Dictionary website defines this as “(a) saying indicating that “Snitches” or people who tell on others to police, partners etc. will get stitches, resulting from some kind of abuse (usually physical)”. This is clearly what the People hoped the jury would believe, and they clearly did so, taking the phrase at face value. However, the phrase is clearly perceived in a much more frivolous light by the public at large, as a brief Internet search revealed hundreds of websites, most offering a plethora of “snitches get stitches”-related merchandise. The phrase is available on a wide variety of coffee mugs, beer steins, greeting cards, t-shirts, re- frigerator magnets, mouse pads and baseball caps. One website even offers a com- plete line of shirts, sweatshirts and ski caps with “SGS” knitted on the front.The phrase even has its own Facebook page, which, despite a few threatening photos, in reality only posts photos of alleged informants and urges viewers to avoid them. There have even been campaigns to ban these items based upon their alleged intimidating nature, similar to the arguments made here, although the specific 16 question of whether or not the phrase is criminally sanctionable speech does not appear to have been specifically addressed to date in New York. In late 2006, Bos- ton Mayor Thomas Menino announced a plan for the city to confiscate T-shirts and other items produced by the Baltimore-based “Stop Snitchin’” campaign, which had begun in 2004. However, Menino quickly backed down when the plan fell be- fore constitutional objections. And although judges have succeeded in banning such items from courtrooms during trials, they still proliferate. The context of the entire Facebook discussion in the case at bar is frivolous, humorous and, we submit, non-threatening. Freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Con- gress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action (Lovell v. City of Grif- fin, 303 U.S. 444, 450, 58 S. Ct. 666, 668 82 L.Ed 949). The First Amendment prohibits the State from criminalizing communications that bear the wording of threats but which are in fact merely jokes, idle talk, or hyperbole. See, e.g., State v. Schaler, 169 Wash.2d at 283, 236 P.3d 858 (citing Kilburn, 151 Wash.2d at 43, 84 P.3d 1215). In People v. Lurk, 2013 WL 6500893 (N.Y. Sup.App.Term), the Court was considering whether or not a text message sent to a complainant stating “what you 17 find funny, I do not find funny, I will have the last laugh, you wait and see” was sufficient to support a charge of disorderly conduct. Finding that it was not suffi- cient to rise to the level of criminally sanctionable speech, the Court stated: “(T)he factual allegations in the accusatory instrument, standing alone, could not reasonably be construed to represent a genuine and immediate threat to the complainant (see People v. Dietze, 75 N.Y. 2d 47, 51 (1989) [the statement did not present a “clear and present danger”].” We submit that the same analysis is applicable to the Facebook entries at is- sue in this case, both the “snitches get stitches” comment and the others stating that she would “get what she deserved”, which are, we submit, on the same level as the text message in Lurk, particularly given the mocking, humorous context of the rest of the comments. In conclusion, we submit that the evidence in the case at bar was insufficient, and lacked the weight, to justify a guilty verdict . The conviction herein should be reversed and expunged from Mr. Horton’s record. 18 CONCLUSION For the reasons set forth above, supported by the arguments and authorities cited, it is clear that neither the weight nor sufficiency of the evidence offered by the People at trial in the Court below supported the jury’s verdict. The Order ap- pealed from should be vacated, and the conviction expunged from the Appellant’s criminal history. Dated: December 15, 2013 Respectfully Submitted, Tyson Blue, Esq. 4064 County Line Road Macedon, New York 14502 585-944-4825 19