| People v Mercado |
| 2014 NY Slip Op 00252 [113 AD3d 930] |
| January 16, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v NyiaMercado, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Schenectady County(Milano, J.), rendered October 13, 2011, upon a verdict convicting defendant of thecrimes of robbery in the first degree and criminal possession of a weapon in the seconddegree (two counts).
At approximately 2:00 a.m. on November 2, 2009, two masked individuals entered aSunoco station convenience store in the City of Schenectady, Schenectady County. Whileone brandished a handgun, the other vaulted over the counter and demanded money fromthe store's clerk. A struggle ensued between the armed robber and a bystander who waspresent, during the course of which two shots were fired, and the perpetrators thereafterfled the store with money obtained from the cash register.
Later that day, Princess Alava was arrested at her apartment in connection with anunrelated shooting that occurred hours after the robbery. Defendant arrived at Alava'sapartment as the police were conducting a search and, after giving defendant permissionto enter, police observed her reach under the cushion of a couch and remove a fistful ofsmall-denomination bills. In the course of their search of Alava's apartment, policerecovered a black jacket and red scarf resembling the garb worn by the armed robber inthe surveillance video, as well as a pistol that forensic evidence revealed to be the sourceof a projectile recovered from the Sunoco robbery.
Defendant arrived at the police station later that same evening to recover Alava's[*2]impounded automobile and, while there, agreed tospeak with a detective concerning Alava's whereabouts at the time of the Sunocorobbery. Defendant explained that she and Alava were together for most of the night, thatthey did not visit any convenience stores that evening and that Alava drove her home atsome point before 2:00 a.m. Alava subsequently provided a statement to policeimplicating herself and defendant in the robbery, after which defendant was charged withrobbery in the first degree, two counts of criminal possession of a weapon in the seconddegree, criminal possession of a weapon in the third degree and assault in the seconddegree. After the People's first attempt to prosecute defendant ended in amistrial,[FN1]a second trial ensued. A jury ultimately convicted defendant of robbery in the first degreeand two counts of criminal possession of a weapon in the second degree, but acquittedher of criminal possession of a weapon in the third degree. She was sentenced toconcurrent prison terms of 15 years on each count, to be followed by five years ofpostrelease supervision. Defendant appeals.
County Court properly denied defendant's motion to suppress the statement she madeto police. "[T]he safeguards required by Miranda are not triggered unless asuspect is subject to custodial interrogation[,] [and] [t]he standard for assessing asuspect's custodial status is whether a reasonable person innocent of any wrongdoingwould have believed that he or she was not free to leave" (People v Lewis, 83 AD3d1206, 1207 [2011], lv denied 17 NY3d 797 [2011] [internal quotation marksand citation omitted]; seePeople v Kenyon, 108 AD3d 933, 935 [2013], lv denied 21 NY3d 1075[2013]). The evidence at the Huntley hearing established that defendant hadcome to the police station of her own accord to recover Alava's impounded automobile.Upon her arrival, an investigator asked if she would talk with him and defendantvoluntarily accompanied him to an interview room. Defendant was not restrained in anyway during the interview, did not indicate any unwillingness to speak to the investigatorand was permitted to leave once the questioning was completed. The interview lastedapproximately 45 minutes, was at all times cordial and, to the extent that it related to theprevious night's robbery, was investigatory rather than accusatory in nature. While theinvestigator initially expressed interest in the shooting involving Alava, rather than therobbery in which he considered defendant to be a potential suspect, "[p]olice suspicion ofwhich defendant was unaware could not render [an] otherwise neutral environmentcoercive" (People vRhodes, 83 AD3d 1287, 1288 [2011] [internal quotation marks and citationomitted]; see People vCordato, 85 AD3d 1304, 1310 [2011], lv denied 17 NY3d 815 [2011]).Given the totality of the circumstances, we agree with County Court that defendant wasnot subjected to custodial interrogation and that the statement she made to the police wasadmissible (see People vBrown, 107 AD3d 1305, 1306 [2013]; People v Vieou, 107 AD3d 1052, 1053 [2013]; People v Underdue, 89 AD3d1132, 1133 [2011], lv denied 19 NY3d 969 [2012]; People v Lewis,83 AD3d at 1208).
Defendant next claims that the verdict was against the weight of the evidence,arguing that there is insufficient proof to identify her as one of the perpetrators of therobbery. We disagree. Defendant's identity as the armed robber was established by thetestimony of Alava, who provided a detailed account of the robbery consistent with thesurveillance footage of the incident and the testimony of the victims. Alava's testimonywas corroborated by the testimony of Letesha Henry, a fellow inmate, who explainedthat, while they were incarcerated, defendant disclosed that she had robbed the Sunocostation with Alava. Furthermore, according to Alava, defendant had obtained the pistolused in the robbery from her mother's boyfriend and, after [*3]leaving the Sunoco station, she and defendant returned toher apartment to divide the stolen money, which consisted of small bills. Defendant'sformer supervisor testified at trial that defendant asked him to exchange a large numberof one dollar bills for larger bills at work later that day.
Although defendant testified on her own behalf and denied involvement in therobbery, it was within the province of the jury to assess her credibility and reject hertestimony (see People vMuniz, 93 AD3d 871, 874 [2012], lv denied 19 NY3d 965 [2012]; People v Rose, 79 AD3d1365, 1366 [2010]). The fact that Alava and Henry have criminal histories and wereeach testifying pursuant to cooperation agreements in which they received leniency wasfully developed at trial and highlighted to the jury, and did not render their testimonyincredible as a matter of law (see People v Estella, 107 AD3d 1029, 1031 [2013], lvdenied 21 NY3d 1042 [2013]; People v Thompson, 75 AD3d 760, 763 [2010], lvdenied 15 NY3d 896 [2010]). Defendant also argues that the victims' descriptions ofthe armed perpetrator do not match her appearance and stresses the absence of anyfingerprints or DNA evidence on the gun or scarf attributable to her, but this simplycreated credibility issues for the jury to resolve (see People v Callicut, 101 AD3d 1256, 1259 [2012], lvdenied 20 NY3d 1096 [2013]; People v Sims, 57 AD3d 1106, 1108-1109 [2008], lvdenied 12 NY3d 762 [2009]; People v Robinson, 53 AD3d 681, 683 [2008], lvdenied 11 NY3d 794 [2008]). Thus, while a different verdict would not have beenunreasonable, upon evaluating the evidence in a neutral light and deferring to the jury'scredibility assessments (seePeople v Romero, 7 NY3d 633, 643 [2006]; People v Callicut, 101AD3d at 1259), we are satisfied that the verdict was in accord with the weight of theevidence.
Defendant also asserts that County Court committed reversible error when itpermitted the People to introduce evidence of certain prior bad acts during theircase-in-chief. By failing to object to County Court's Ventimiglia ruling or uponthe admission of such evidence at trial, defendant failed to preserve this issue for ourreview (see People v Tyrell,82 AD3d 1352, 1355-1356 [2011], lv denied 17 NY3d 810 [2011];People v Taylor, 253 AD2d 471, 471 [1998], lv denied 92 NY2d 952[1998]; People v McClain, 250 AD2d 871, 872 [1998], lv denied 92NY2d 901 [1998]).[FN2]Significantly, the court gave proper and appropriate limiting instructions regarding thepermissible use of such evidence, thus tempering its prejudicial effect (see People v Reid, 97 AD3d1037, 1038 [2012], lv denied 19 NY3d 1104 [2012]; People v Lee, 80 AD3d877, 880 [2011], lv denied 16 NY3d 833 [2011]; People v Moyer, 75 AD3d1004, 1007[*4][2010]).
Nor are we persuaded that the verdict is repugnant. " '[A] verdict as to a particularcount shall be set aside only when it is inherently inconsistent when viewed in light ofthe elements of each crime as charged to the jury' " (People v Burden, 108 AD3d 859, 859-860 [2013], quotingPeople v Tucker, 55 NY2d 1, 4 [1981]; accord People v Muhammad, 17 NY3d 532, 539 [2011]).As to the relevant elements, the counts of criminal possession of a weapon in the seconddegree, as charged to the jury, required the People to prove that defendant knowinglypossessed a loaded firearm (see Penal Law § 265.03 [1] [b]; [3]). Thecharge of criminal possession of a weapon in the third degree required the jury to findthat defendant knowingly possessed a defaced firearm (see Penal Law §265.02 [3]). Although the parties stipulated that the gun was defaced at the time it wasrecovered, the jury still had to determine whether it was defaced at the time thatdefendant possessed it and, if so, whether defendant knew it was defaced. Sincedefendant could knowingly possess a gun without necessarily knowing that it wasdefaced, her convictions for criminal possession of a weapon in the second degree werenot inconsistent with her acquittal on the criminal possession of a weapon in the thirddegree count (see People vCarter, 60 AD3d 1103, 1105-1106 [2009], lv denied 12 NY3d 924[2009]).
Finally, we are unconvinced by defendant's claim that her sentence is harsh andexcessive. Defendant entered a convenience store brandishing a loaded handgun, held itsoccupants at gunpoint and thereafter engaged in a struggle with an innocent bystanderduring the course of which two shots were fired. Thus, defendant's conduct created asubstantial likelihood of serious injury. Moreover, she pleaded guilty to the robbery ofanother convenience store that occurred on the same evening as the instant robbery. Weperceive neither an abuse of discretion nor extraordinary circumstances warranting areduction of the sentence (seePeople v Castellano, 100 AD3d 1256, 1258 [2012], lv denied 20 NY3d1096 [2013]). Further, nothing in the record indicates that the sentence imposed wasvindictive or otherwise designed to punish defendant for exercising her right to trial (see People v Blond, 96 AD3d1149, 1153-1154 [2012], lv denied 19 NY3d 1101 [2012]).
Lahtinen, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: The assault charge wasdismissed at the close of the People's proof at the first trial.
Footnote 2: Were we to address themerits of the claim, we would find that such evidence tended to explain defendant'smotive in possessing the gun (see People v Reid, 97 AD3d 1037, 1038 [2012], lvdenied 19 NY3d 1104 [2012]; People v Burnell, 89 AD3d 1118, 1121 [2011], lvdenied 18 NY3d 922 [2012]; People v Lee, 80 AD3d 877, 880 [2011], lv denied16 NY3d 832 [2011]; People vWilliams, 28 AD3d 1005, 1008 [2006], lv denied 7 NY3d 819 [2006]),and County Court's failure to expressly recite its discretionary balancing of the probativevalue of such evidence against its potential for prejudice would not warrant reversal here(see People v Dickson, 82AD3d 1289, 1290 [2011], lv denied 16 NY3d 894 [2011]; People v Meseck, 52 AD3d948, 950 [2008], lv denied 11 NY3d 739 [2008]).