SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department
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PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V

MEMORANDUM AND ORDER

PRESTON CARTER, DEFENDANT-APPELLANT.

MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered November 28, 2012. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree.
It is hereby ORDERED that the judgment so appealed from is
reversed on the facts, the indictment is dismissed, and the matter is
remitted to Monroe County Court for proceedings pursuant to CPL
470.45.
Memorandum: On appeal from a judgment convicting him after a
jury trial of murder in the second degree (Penal Law § 125.25 [1]),
defendant contends, inter alia, that the verdict is against the weight
of the evidence. We agree. Although the People may have proved that
defendant is probably guilty, the burden of proof in a criminal action
is, of course, much higher than probable cause; the prosecution is
required to prove a defendant’s guilt beyond a reasonable doubt, and
the evidence in this case does not meet that high standard. For the
reasons that follow, we have doubts whether defendant is the person
who killed the victim and, in our view, those doubts are reasonable.
We therefore reverse the judgment of conviction and dismiss the
indictment.
The victim was a middle-aged Caucasian man who lived in the Town
of Brighton and frequently engaged in what his friends described as
“high-risk” behavior, i.e., “hooking up” with men he met online and
engaging in consensual sexual acts with them. According to the
victim’s closest friend, a woman named Michele, the victim was
“addicted” to sex, sometimes meeting up with more than one partner on
the same day. Michele testified that the victim preferred his sexual
partners to be “young black males who looked thuggy or street-like,
kind of a danger and edge to them—that was his type.” There was also
testimony that the victim would “cruise” certain parts of the City of

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Rochester looking for black men with whom to meet.
On November 16, 2008, the victim checked into a hotel in
Henrietta at 6:59 p.m. According to Michele, the victim liked to use
this hotel for sexual trysts because its security was “lax.” An
African-American man entered the hotel with the victim, but did not
approach the front desk with him. Instead, the man walked toward the
elevator. The hotel employee working at the front desk recognized the
victim from prior visits and, during the check-in process, the victim
said that there would be two guests in the room. The employee gave
the victim two keys to Room 333, located on the third floor. The
victim took the keys and walked to the elevator.
The employee who dealt with the victim left work at 11:00 p.m.
and did not see him or the other man leave the hotel, and neither did
the front desk employee who replaced her and worked the overnight
shift. Aside from the front entrance, there were four other ways to
enter and exit the hotel, and one could come and go through those
doors without passing by the front desk. There was a surveillance
camera that covered the registration desk, but there were no other
cameras at the hotel or in the parking lot.
At 9:19 that night, the victim called his teenage son from his
cell phone and said that he did not know where he was. According to
the son, the victim sounded “very confused” and was “panicking” before
hanging up abruptly. The son called the victim back several times,
but the victim initially did not answer. At 9:21 the victim finally
answered a call from his son and said that everything was fine and
that he had just been joking. The victim hung up before the son could
seek clarification.
At approximately 10:00 the following morning, a hotel employee
entered the victim’s room and observed blood on the walls and floor.
The police were called to the scene, and the victim’s dead body was
found on the floor next to the bed under a blanket. His skull had
been crushed in several places by what the Medical Examiner believed
to have been a blunt instrument of some sort. The victim also had
bruises all over his body and multiple cuts on his face. There was
tape that had been wrapped around the victim’s left hand, suggesting
that someone had tried to restrain him, and ligature marks around his
neck, as if he had been strangled. No murder weapon was recovered,
although the police found the hand grip of a pellet gun on the floor
in the hotel room. The grip had apparently broken off the handle of
the gun.
A murder investigation commenced, resulting approximately three
years later in defendant’s arrest. At the time of his arrest,
defendant was 28 years old and had no criminal record.
The evidence at trial established beyond a reasonable doubt that
defendant was the person who entered the hotel with the victim at 6:59
p.m., and that defendant lied to the police by repeatedly denying that
he knew the victim or had contact with him. The police found in the
hotel room a receipt from a convenience store that was given to

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someone who purchased an item with an Electronic Benefit Transfer Card
issued to defendant by the New York State Office of Temporary and
Disability Assistance. The receipt was on the floor next to the
victim’s body.
In addition, phone records established that the victim had made
several calls to the landline telephone at defendant’s residence on
November 16, 2008. Shortly after the last call, the victim used his
home computer to reserve the hotel room. After discovering the
victim’s body in the hotel room, the police searched for his vehicle,
which was not in the hotel parking lot. The vehicle was found later
that day parked on a city street approximately six-tenths of a mile
from defendant’s residence. Inside the vehicle, the police found
printed Mapquest directions to a residence located at 23 Roxborough
Road. No such address exists, but defendant resided at 203 Roxborough
Road, and the directions were printed moments after the victim
reserved the hotel room.
Finally, a hair found on the sink in the bathroom of the hotel
room was linked to defendant. Mitochondrial DNA testing showed that
the DNA of the hair matched defendant’s DNA, and that, unlike
defendant, 99.91% of the population could be excluded as a source. It
is thus clear that the victim picked up defendant at his residence and
drove him to the hotel, and that the two entered the room together.
Nevertheless, under the circumstances of this case, the mere fact
that defendant was in the hotel room with the victim, and most likely
engaged in sexual acts with him, does not establish beyond a
reasonable doubt that defendant is the person who killed him. As the
People acknowledge, the Medical Examiner did not determine the time of
death. Thus, as far as we know, the victim could have been killed at
any time between 9:21 p.m. on November 16, 2008, when he spoke to his
son on the phone, and 10:00 the next morning, when his body was found.
Moreover, the evidence at trial suggests that someone other than
defendant may have been in the hotel room with the victim that night,
and that the victim may have left the hotel room at some time after he
checked in with defendant.
With respect to whether there were other people in the hotel room
with the victim other than defendant, we note that DNA from two males
was obtained from a plastic drinking cup in the hotel room, and
testing excluded defendant as a contributor. Defendant was also
excluded as the source of a second strand of hair found on the
bathroom sink, and the victim was excluded as well. A blond strand of
hair was found on the victim’s abdomen and, although DNA testing could
not be done on the hair, the victim did not have blond hair and the
People’s expert testified that she would not expect the hair to have
come from an African-American. A blond strand of hair was also found
in the victim’s vehicle after it was recovered by the police, and a
pair of women’s underwear was found in the bathroom of the hotel room.
There is also evidence that the victim may have left the hotel
before he was murdered. To begin with, the phone call the victim made
to his son at 9:19 p.m.—the one during which the victim sounded

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confused and said that he did not know where he was—was processed
through an AT&T cell tower located at 350 Buell Road in the Town of
Gates. The same is true of the call received by the victim from his
son two minutes later. The hotel is in the Town of Henrietta, which
is not contiguous to the Town of Gates. The AT&T representative who
testified at trial did not know which of its cell towers serviced
calls made and received at the hotel. It thus cannot be said with any
degree of certainty that the victim was at the hotel when he spoke
with his son.
The victim’s phone was also used at 10:21 p.m. to call a number
in the 315 area code; the call was not connected, meaning that the
other person did not answer. No evidence was offered at trial as to
whom that call was made. The People suggested at trial that defendant
made that call on the victim’s phone after committing the murder, but
we are not so sure. The record does not reveal whether the police
tracked down the intended recipient of the call to determine if he or
she knew defendant or the victim.
The evidence further showed that someone used the computer in the
victim’s bedroom at his home at 10:49 that same night. The victim’s
bedroom was on the first floor of a condominium he shared with his son
and an adult female friend, both of whom had computers in their rooms
and testified that they did not use the victim’s computer that night.
It is also curious that a key to the hotel room was found in the
center console of the victim’s vehicle. The People’s theory is that
defendant, after committing the murder, drove the victim’s car to
within a mile of his home and then left it on the side of the street.
But why would defendant take a hotel key with him after killing the
victim? One did not need a key to exit the hotel. And why would
defendant place the key in the center console, as if he intended to
return to the hotel? It seems more likely that the victim placed the
room key in the center console.
We note that, although the murderer
left bloody footprints on the carpet in the hotel room, and blood was
splattered on the walls, ceiling, and floor of the room, no blood was
found in the victim’s vehicle, not even on the brake or gas pedals.
A review of the victim’s emails from the day in question reveal
that he engaged in communications with several men other than
defendant and discussed with them meeting for sexual activity. It
appears undisputed that the victim met up with one such man earlier in
the day at a different location. The victim exchanged multiple emails
with another man who expressed interest in meeting. The victim
informed this man, whose first name was Waki, that he had a hotel room
and inquired whether Waki needed a ride. Waki instructed the victim
to call him to discuss things further, and provided the victim with a
number to call. That was the last email between the two.
The People posit that the victim never called Waki because his
cell phone records do not reflect a call to Waki’s number. As the
defense pointed out at trial, however, the People did not offer into
evidence the records from the victim’s landline telephone at home or
from the telephone in the hotel room. The fact that the victim did

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not call Waki from his cell phone does not establish, ipso facto, that
the two did not meet that night. Although the police located Waki and
questioned him about the homicide, they did not obtain a DNA sample
from him. We therefore do not know whether Waki is a match for any of
the DNA samples obtained from the hotel room and the victim’s vehicle.
Nor did the police obtain a DNA sample from a man named Shaft,
the victim’s ex-boyfriend. According to Michele, the victim’s closest
friend, Shaft had been abusive and unfaithful to the victim, and that
is why the relationship ended. Several witnesses testified at trial
that the victim planned to reconnect with Shaft on the weekend of his
murder, and two of the victim’s coworkers testified that the victim
said a day or two before his death that he had plans that weekend to
meet a new person and an old boyfriend. When talking to one coworker
about the old boyfriend, the victim “seemed really nervous” and his
lips were quivering. The coworker had never seen the victim act like
that, and said that perhaps it was not a good idea for him to see the
ex-boyfriend. Although obviously nervous, the victim did not change
his mind, saying that “everything is dangerous.”
Shaft worked at a restaurant in Henrietta, less than a mile from
the hotel in which the victim was murdered. When questioned by the
police, Shaft said that he was at his mother’s house on the night in
question, but the police did not check with Shaft’s mother to verify
his alibi, nor did they obtain a DNA sample from him.
We note that Shaft’s sister, the woman who resided with the
victim and his son, called the hotel on the morning that the victim’s
body was found and asked the person at the front desk to check the
victim’s room to make sure he was okay. She knew that the victim
frequently used that hotel to meet people, and she was concerned
because he rarely, if ever, stayed overnight at the hotel. The front
desk employee testified at trial that Shaft’s sister identified
herself as the victim’s wife and said that she had called the victim’s
room directly but got no answer, and that she was concerned because
the victim had a heart condition. If Shaft’s sister did, in fact,
call the victim’s room directly, the obvious question is how she knew
which room to call.
The People assert on appeal that defendant could not be excluded
as a contributor to the DNA collected from the victim’s fingernail
clippings, as if that were evidence of his guilt. The dissent relies
on this evidence as well. The People’s expert testified, however,
that the tests conducted of the DNA from the victim’s fingernails were
“inconclusive,” i.e., defendant could not be included or excluded as a
contributor. In other words, the fingernail DNA evidence was neither
inculpatory nor exculpatory, and thus was of little, if any, probative
value. The trial prosecutor, to his credit, did not even mention the
fingernail DNA evidence during his summation. Although DNA tests were
conducted on more than 50 items found in the hotel room and in the
victim’s vehicle, the only item that was linked to defendant was a
hair found on the bathroom sink, the same sink on which the police
found another hair that did not belong to either defendant or the
victim.

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The People at trial relied in part on the bloody footprints that
were left on the carpet of the hotel room. The footprint impressions
looked similar to impressions made by a pair of Nike boots found by
the police in the home of defendant’s girlfriend, with whom he lived
at the time with their infant daughter. The People’s expert
acknowledged, however, that there were differences in the arch area of
the bloody footprints and the impression made by the Nike boots, and
that she could not make a “definitive determination” whether the Nike
boots had left the bloody footprints. The expert also acknowledged
that the FBI conducted forensic tests on the boots looking for traces
of blood and found none, and that blood could remain on boots for
decades.
The People’s case thus rested on three pillars of circumstantial
evidence: (1) the fact that defendant entered the hotel with the
victim at approximately 7:00 p.m., some 15 hours before his dead body
was found in the hotel room; (2) the fact that defendant repeatedly
lied to the police when he said that he did not know the victim and
had never met him; and (3) the fact that the victim’s vehicle was
found abandoned on a city street approximately six-tenths of a mile
from defendant’s residence.
As noted above, defendant’s presence in the room, although
incriminating, is by no means conclusive considering that other people
may have been in the room with the victim and that the Medical
Examiner could not determine the time of death. As for defendant’s
lies to the police, it appears that he may not have been living as an
openly gay man—he had a girlfriend and children from different women—
and he may have said that he did not know the victim so as not to
reveal his sexual orientation. Finally, although the presence of the
vehicle so close to defendant’s residence is suspicious, the victim
was known to drive around the city looking for sexual partners, and
the record does not disclose where Shaft or Waki resided.
The People did not suggest at trial a motive for the brutal
killing, which evidently was committed with great malice, and we
cannot conceive of a possible motive from our review of the record.
“Although motive is not an element of the crime, it nonetheless cannot
be ignored” (People v Richardson, 55 AD3d 934, 937 [3d Dept 2008], lv
dismissed 11 NY3d 857 [2008]). Indeed, where, as here, the People’s
case is based entirely on circumstantial evidence, “ ‘motive often
becomes not only material but controlling’ ” (People v Moore, 42 NY2d
421, 428 [1977], cert denied 434 US 987 [1977], quoting People v
Fitzgerald, 156 NY 253, 258 [1898]; see People v Mixon, 203 AD2d 909,
910 [4th Dept 1994], lv denied 84 NY2d 830 [1994], reconsideration
denied 84 NY2d 909 [1994]).
Concerned “about the incidence of wrongful convictions and the
prevalence with which they have been discovered in recent years,” the
Court of Appeals has stressed the importance of the role of the
Appellate Division in serving, “in effect, as a second jury,” to
“affirmatively review the record; independently assess all of the
proof; substitute its own credibility determinations for those made by
the jury in an appropriate case; determine whether the verdict was

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factually correct; and acquit a defendant if the court is not
convinced that the jury was justified in finding that guilt was proven
beyond a reasonable doubt” (People v Delamota, 18 NY3d 107, 116-117
[2011] [emphasis added]; see People v Oberlander, 94 AD3d 1459, 1459
[4th Dept 2012]).
We agree with the dissent that an appellate court must give great
deference to a jury’s credibility determinations inasmuch as the jury
is in a far superior position to assess the veracity of witnesses (see
People v Bleakley, 69 NY2d 490, 495 [1987]). Here, however, the jury
was not called upon to make credibility determinations, as almost all
of the relevant facts adduced at trial were undisputed. Instead, the
jury was asked to make inferences based on the evidence, a task that
we are no less qualified to undertake.
Quoting People v Cahill (2 NY3d 14, 58 [2003]), the dissent also
asserts that our authority to review the weight of the evidence in a
criminal case is not an “ ‘open invitation’ ” to substitute our
judgment for that of the jury. “Of course that is true,” the Cahill
Court went on to say in a portion of the decision not quoted by the
dissent. “But on the other hand, weight of the evidence review does
not connote an invitation to abdicate our responsibility” to
independently weigh the evidence (id.) and “to serve, in effect, as a
second jury” (Delamota, 18 NY3d at 117). The mere fact that the jury
rendered a guilty verdict is only the beginning of our analysis.
In sum, based on our independent review of the evidence, and
viewing the evidence in light of the elements of the crime as charged
to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we
conclude that the verdict is against the weight of the evidence and
cannot stand (see generally Bleakley, 69 NY2d at 495). Although the
police cannot be faulted for arresting defendant, nor the People for
prosecuting him, the evidence at trial simply failed to prove
defendant’s guilt beyond a reasonable doubt. There are too many
unanswered questions for us to be comfortable that the right person is
serving a life sentence for the victim’s murder.
All concur except CARNI, J.P., and CURRAN, J., who dissent and
vote to affirm in the following memorandum: We agree with the
implicit determination of our colleagues that there is sufficient
evidence to support the jury’s verdict of murder in the second degree
(Penal Law
§ 125.25 [1]), but we respectfully disagree with their conclusion that
the verdict is against the weight of the evidence. We therefore would
affirm the judgment of conviction.
The standard for weight of evidence review is well settled and
set out by the Court of Appeals in People v Bleakley (69 NY2d 490, 495
[1987]): “If based on all the credible evidence a different finding
would not have been unreasonable, then the appellate court 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’ . . . If it appears
that the trier of fact has failed to give the evidence the weight it

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should be accorded, then the appellate court may set aside the
verdict.”
This, of course, is not an “open invitation” for an appellate
court to substitute its judgment for that of the jury (People v
Cahill, 2 NY3d 14, 58 [2003] [internal quotation marks omitted]).
Rather, an appellate court must give “[g]reat deference” to the jury’s
resolution of factual issues (Bleakley, 69 NY2d at 495). It is the
“fact-finder[]” that has the “opportunity to view the witnesses, hear
the testimony and observe demeanor” (id.), and the Court of Appeals
has emphasized that “those who see and hear the witnesses can assess
their credibility and reliability in a manner that is far superior to
that of reviewing judges who must rely on the printed record” (People
v Lane, 7 NY3d 888, 890 [2006]).
Bearing those principles in mind, we conclude that the jury was
justified in finding defendant guilty of murder in the second degree
beyond a reasonable doubt. The majority recognizes that the People
presented overwhelming evidence that defendant was in the hotel room
the night before the victim’s body was discovered. While that
evidence does not necessarily establish that defendant killed the
victim, there is ample circumstantial evidence supporting that
conclusion reached by the jury. Specifically, the evidence
established that the victim’s car was seen outside the Chili Mini Mart
at 6:30 p.m. The victim checked into the hotel at 6:59 p.m. with a
black male, whom, as the majority concedes, the evidence established
beyond a reasonable doubt was defendant. While the victim spoke with
his son by telephone a couple of times at approximately 9:20 p.m., no
one was able to contact the victim after those telephone calls. A
receipt from the Chili Mini Mart with defendant’s welfare benefit
number was found on the floor near the victim’s feet, and it had the
victim’s blood on it. The victim’s car was found the following day
only six-tenths of a mile from defendant’s residence, with a keycard
for the hotel where the victim was found in the car’s center console.
Using a known sample of defendant’s DNA as a basis for comparison,
defendant could not be excluded as the source of DNA from various
pieces of evidence, including fingernail scrapings on the victim’s
right hand, a crease of tape used to bind the victim’s hands, and a
swab taken from the steering wheel of the victim’s car. Further, the
right boot from a pair of defendant’s boots looked similar in shape
and pattern to the bloody footprints found at the scene.
The majority goes to great pains to identify some evidence that
possibly suggests that someone other than defendant may have been in
the hotel room with the victim that night, and that the victim may
have left the hotel room at some time after he checked in with
defendant. In our view, however, that amounts to no more than
impermissible speculation and, notably, there was no real evidence of
any meeting between the victim and anyone else that night. In light
of the above evidence establishing defendant’s guilt, we cannot
conclude that the verdict is against the weight of the evidence (see
generally Bleakley, 69 NY2d at 495).

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Entered: February 2, 2018 Mark W. Bennett
Clerk of the Court