| People v Hilliard |
| 2008 NY Slip Op 01872 [49 AD3d 910] |
| March 6, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v TyreseHilliard, Appellant. |
—[*1] Stephen F. Lungen, District Attorney, Monticello, for respondent.
Spain, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered April 11, 2006, upon a verdict convicting defendant of the crimes of murder in thesecond degree, robbery in the first degree (three counts), criminal use of a firearm in the firstdegree, conspiracy in the fourth degree and criminal possession of a weapon in the seconddegree.
Defendant stands convicted following a jury trial, for a second time, of felony murder, firstdegree robbery (three counts), weapons-related crimes and conspiracy (to commit robbery) in thefourth degree. Previously, on defendant's appeal following his first trial, this Court reverseddefendant's convictions and remitted for a retrial due to the admission into evidence ofdefendant's statements taken in violation of his right to counsel (20 AD3d 674 [2005], lvdenied 5 NY3d 853 [2005]).
At defendant's retrial, it was again established that he was the ringleader in a plan with threeacquaintances to rob Arthur Hayes during a staged drug buy in the hamlet of Mountaindale in theTown of Fallsburg, Sullivan County. The evidence again showed that pursuant to the conspiracy,defendant drove with the victim to the location of the purported drug sale under the ruse offacilitating the victim's purchase of a large quantity of marihuana from local drug dealers. Asplanned, when coconspirators Sheldon Wells and Quinton Lawrence arrived, Lawrencepretended to beat up defendant while Wells—to whom defendant had given a loaded gunearlier that day—forced the victim out of the car, forcibly stole his cash, and then suddenlyshot him in [*2]the back, killing him. Robert Dawson was waitingin a getaway car and drove Wells and Lawrence away. Defendant "fled" to the home of his friendChristopher Beatty (who had arranged for defendant to assist the victim with his drug purchasebut was unaware of defendant's nefarious intentions) and falsely reported to Beatty that they hadbeen robbed by unknown assailants. Lawrence and Dawson pleaded guilty to robbery charges(Lawrence also pleaded to conspiracy) and testified at defendant's trial as part of negotiated pleas.Wells pleaded guilty to felony murder (People v Wells, 18 AD3d 1022 [2005], lv denied 5 NY3d796 [2005]), but did not testify. Defendant was sentenced to an aggregate prison term of 25 yearsto life for the felony murder, robbery in the first degree (three counts) and criminal use of afirearm in the first degree convictions, a consecutive prison term of 15 years for the criminalpossession of a weapon in the second degree conviction (which had been concurrent after thefirst trial), and a consecutive prison term of 1
While defendant challenges the legal sufficiency of the evidence supporting all of hisconvictions, the conspiracy count was the only one to which specific deficiencies in the evidencewere raised in defendant's motion to dismiss so as to preserve those contentions for appellatereview (see People v Balram, 47AD3d 1014, 1015 [2008]; People vCarter, 40 AD3d 1310, 1311 [2007], lv denied 9 NY3d 873 [2007]; People v Riddick, 34 AD3d 923,924 [2006], lv denied 9 NY3d 868 [2007]). Defendant's general motion to dismiss as tothe other counts did not preserve for our review the challenges now raised to the sufficiency ofthe proof with respect to particular elements of those crimes (see People v Finger, 95NY2d 894, 895 [2000]; People v Gray, 86 NY2d 10, 19 [1995]; People v Balram,47 AD3d at 1015; People v Carter, 40 AD3d at 1311). As to the unpreserved claims, wedecline to exercise our interest of justice jurisdiction (see CPL 470.15 [3] [c]; [6][a]).[FN1]
With regard to defendant's challenge to the evidence supporting his conviction for conspiracyin the fourth degree, we find that the People proved that defendant, Wells and Dawson, acting inconcert, agreed to commit robbery in the first degree, a class B felony, and that defendantintended that conduct constituting the object of the conspiracy—the robbery—beperformed (see People v Hafeez, 100 NY2d 253, 259 [2003]; see also Penal Law§ 105.10 [1]). Defendant's conduct in obtaining a gun and giving it to Wells and in drivingwith the victim to the scene constituted overt acts in furtherance of the conspiracy (see People v Faccio, 33 AD3d1041, 1043 [2006], lv denied 8 NY3d 845 [2007]; see also Penal Law§ 105.20).
Contrary to defendant's contentions, while the factual recitation in the conspiracy count of theindictment named the intended robbery victim (Hayes), the People were not required to provethat all of the coconspirators knew the intended victim's identity,[FN2]which is not an element [*3]of the conspiracy count (seePeople v Treuber, 64 NY2d 817, 818 [1985]; People v Charles, 61 NY2d 321, 327[1984]; cf. People v Grega, 72 NY2d 489, 497-498 [1988]). "[W]hen an indictmentalleges facts that are extraneous or immaterial to the charges or beyond what is necessary tosupport the charges, . . . the People need not prove more than those factualallegations necessary to support a conviction" (People v Grega, 72 NY2d at 497; see People v Kuykendall, 43 AD3d493, 495 [2007], lv denied 9 NY3d 1007 [2007]). The inclusion of the identity of theintended victim in the indictment was not an essential fact required to support the element ofconspiracy that defendant entered into a criminal agreement with his coconspirators to commitrobbery (see People v Treuber, 64 NY2d at 818; People v Osinowo, 28 AD3d 1011, 1013 [2006], lv denied7 NY3d 792 [2006]; cf. People v Grega, 72 NY2d at 497-498; People v Barnes,50 NY2d 375, 379 [1980]; People vVandermuelen, 42 AD3d 667, 668-669 [2007], lv denied 9 NY3d 965 [2007]).The indictment provided defendant with fair notice of the conspiracy accusation against him andthe People's theory at trial was the same as that charged in the indictment (see People vOsinowo, 28 AD3d at 1013).
We also reject defendant's remaining challenges to the verdict. While County Courtimproperly allowed rebuttal testimony of a police lieutenant on a collateral matter—i.e., toimpeach the testimony of defendant's former girlfriend that she had not observed any marihuanain his bedroom on the day of the crimes—such error was harmless in light of theoverwhelming evidence of defendant's guilt (see People v St. Louis, 20 AD3d 592, 593 [2005], lv denied5 NY3d 856 [2005]; see also People v Knight, 80 NY2d 845, 847 [1992]; People vCrimmins, 36 NY2d 230, 242 [1975]; cf. People v Bellamy, 26 AD3d 638, 640-641 [2006]). The court,however, properly denied defendant's request for a missing witness charge as to Wells (theshooter) who, unlike the other coconspirators, pleaded guilty to felony murder in exchange for a20-year prison term without any agreement to testify for the prosecution (People v Wells,18 AD3d at 1022). While clearly knowledgeable about material facts related to these crimes,defendant made no showing, as required, that the incarcerated Wells "would be expected totestify favorably" for the People (People v Gonzalez, 68 NY2d 424, 428 [1986]; see People v Harris, 19 AD3d 871,874 [2005], lv denied 5 NY3d 806 [2005]; see also People v Savinon, 100 NY2d192, 197 [2003]).
Finally, we are persuaded by defendant's argument that the imposition of a more severesentence after his retrial and conviction on the same counts violated his due process rights.Specifically, after the initial trial the sentences were all imposed concurrently (except a1
To overcome the presumption, the reasons for the enhanced sentence must be stated on therecord, and " 'must be based on objective information concerning identifiable conduct onthe part of the defendant occurring after the time of the original sentencing proceeding' "(People v Young, 94 NY2d at 176-177 [emphases added], quoting North Carolina vPearce, 395 US at 726; see People v Van Pelt, 76 NY2d at 159-160). No suchsubsequent conduct, new facts or events were articulated here to justify the increased sentence(see People v Van Pelt, 76 NY2d at 161-162; cf. People v Caruso, 34 AD3d 863 [2006], lv denied 8NY3d 879 [2007]; People v Carroll, 300 AD2d 911 [2002], lv denied 99 NY2d626 [2003]). Notably, the key witnesses all testified in essentially the same manner anddefendant's central role was known. County Court's stated reason for theenhancement—that the incarcerated coconspirators were forced to testify again, placingthemselves in jeopardy—is not attributable to defendant but, rather, to the original trialcourt error, and is insufficient to overcome the presumption (see People v Van Pelt, 76NY2d at 161-162 [if requiring witnesses to testify at a retrial overcame the presumption ofvindictiveness, "that common fact would swallow the rule itself"]; cf. People v Miller, 65NY2d 502, 509 [1985], cert denied 474 US 951 [1985] [requiring victim to testify at trialafter guilty plea vacated on appeal justified higher sentence because the defendant forfeitedbenefit of bargained-for plea agreement]). Thus, defendant's sentence on the weapons possessioncount must run concurrently to the other sentences.
Defendant's remaining claims have been considered and found to lack merit.
Cardona, P.J., Peters, Lahtinen and Kane, JJ., concur. Ordered that the judgment is modified,on the law, by directing that defendant's sentence for criminal possession of a weapon in thesecond degree under count six of the superceding indictment shall run concurrent with the othersentences, and, as so modified, affirmed.
Footnote 1: Likewise, defendant's challengeto the sufficiency of the evidence corroborating his accomplices' testimony is unpreserved andwill not be addressed.
Footnote 2: Defendant, as the originator ofthe criminal plan, clearly knew the identity of the intended robbery victim and intended andunderstood that he had agreed with the others to commit the robbery of the victim; defendant hadthe requisite mens rea for the crime of conspiracy and it is irrelevant, under the unilateralapproach to conspiracy adopted in this state, whether the other coconspirators knew the intendedvictim's identity from the outset or when, if ever, there was a "meeting of the minds" on thatpoint (see People v Caban, 5 NY3d143, 149 [2005]; People v Schwimmer, 66 AD2d 91, 95-96 [1978], affd forreasons stated below 47 NY2d 1004, 1005 [1979]; see also Penal Law §105.30).
Footnote 3: A consecutive1