| People v Tyrell |
| 2011 NY Slip Op 01743 [82 AD3d 1352] |
| March 10, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v GaryA. Tyrell, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered February 13, 2009, upon a verdict convicting defendant of the crimes of attemptedmurder in the second degree, assault in the first degree, robbery in the first degree (two counts),robbery in the second degree and criminal possession of a weapon in the second degree.
On the evening of May 25, 2007, Michael Brown was shot in the chest and leg and moneywas forcibly taken from him in his home in the City of Albany after he was unable to pay hisdrug supplier, Nakia Rose, a large sum of money that Rose had come to collect for previouslydelivered drugs. Brown described his assailants to Albany police who responded to the scene; hereported that they were armed and driving a black BMW X5 SUV with chrome rims, likelyheaded south. An officer safety alert was issued for the car and assailants, who were stopped byState Troopers in the described vehicle at about 8:12 p.m. on the New York State Thruway,southbound. When State Police confirmed that the vehicle occupants—defendant andRose—matched the victim's more detailed physical and clothing description of theassailants provided to the Albany police at the hospital, the suspects were taken to the StatePolice barracks in the City of Kingston, Ulster County. Albany police detectives investigating theshooting arrived around 10:20 p.m., provided Miranda warnings and questioned bothsuspects; defendant admitted having been in Albany with Rose, but solely for the purpose ofbringing a female acquaintance there. The suspects were taken back to Albany and placed underarrest the next morning after the [*2]victim identified them. Asearch of the vehicle disclosed, in a hidden compartment, two handguns, cash, cellular phonesand other evidence.
Defendant and Rose were jointly indicted and, after an unsuccessful suppression hearing,they were tried separately. Rose was convicted of first degree assault, first and second degreerobbery and other crimes, and acquitted of attempted murder; we affirmed (People v Rose, 72 AD3d 1341[2010]). After defendant's jury trial, at which Brown identified him as the shooter and thetestimony was substantially indistinguishable from that against Rose, defendant was convicted ofattempted murder in the second degree, assault in the first degree, robbery in the first degree (twocounts), robbery in the second degree and criminal possession of a weapon in the second degree.Sentenced as a predicate felon to an aggregate prison term of 25 years to life, with five years ofpostrelease supervision, defendant now appeals.
Initially, we reject defendant's contention that County Court erred in denying his motion tosuppress all of the evidence against him on the premise that he was illegally detained by StatePolice resulting in a de facto arrest without probable cause. The identical contentions wereaddressed and rejected in Rose's appeal (id. at 1343-1346), and we adopt the conclusionsreached therein. As we held, "the vehicle was lawfully stopped by State Police on the Thruwayand [Rose] was lawfully handcuffed and detained for [later] questioning because [police] hadreasonable suspicion that he had been involved in this shooting" (id. at 1343). Contrary todefendant's claims, the "non-arrest detention was within the scope of the lawful investigativestop, during which a shooting was investigated" (id. at 1344); it "was permissible inscope and duration, the coordinated investigation that occurred at some distance with Albanypolice to ascertain if [State Police] had stopped the correct suspects was diligent, rapid andminimally intrusive, and there was no proof that a significantly less intrusive or more rapidinvestigatory means was available to accomplish this purpose" (id. at 1345). Once theiridentities were confirmed, police had probable cause to arrest them, supporting their continueddetention and de facto arrest. No violation of defendant's constitutional rights occurred, and hismotion to suppress was properly denied.
Next, we are not persuaded by defendant's claim that the verdict was contrary to the weightof the evidence because Brown was unworthy of belief. While a different finding would not havebeen unreasonable as the jury could have disbelieved Brown, viewing the evidence in a neutrallight we find that it was largely uncontradicted and credible (see People v Bleakley, 69NY2d 490, 495 [1987]; see also Peoplev Romero, 7 NY3d 633, 643-644 [2006]). "[A]ccording appropriate deference to thejury's assessment of witness credibility and demeanor, we do not find that the verdict, whichdepended almost wholly on credibility determinations, was against the weight of the evidence"(People v Diotte, 63 AD3d1281, 1283-1284 [2009] [internal quotation marks and citation omitted]).
Brown testified that he arranged to meet Rose at a store near his house; defendant, who hedid not know, was with Rose, and they drove the BMW to Brown's house. When Brown wasunable to pay Rose the money due for consigned drugs because his house had been reportedlyburglarized the night before, defendant ordered Brown to lie face down on the floor anddemanded that he turn over his money; Brown rolled over and complied, and defendant alsoremoved some cash from Brown's pockets while Rose pointed a handgun at him. Rose then urgeddefendant, armed with a 9 millimeter handgun, to shoot Brown in the head, and defendant thenshot Brown several times, striking his leg and chest/arm area, and the assailants fled.[*3]
Brown's account was consistent with the information anddescription of the assailants given to the police, the medical testimony, cell phone records, theballistics and shell casings evidence, and the secreted guns recovered from the BMW. It wasfurther in accord with the testimony of neighbors who observed the assailants arrive with Brownand then depart. Also testifying was a jail inmate who defendant befriended and to whom heconfessed his role in this shooting as the self-described "wetman" (shooter) or collector for agang that was engaged in selling marihuana. Significantly, the inconsistencies or shortcomings inBrown's (and the inmate's) testimony were fully explored for the jury and did not concerndefendant's identity as the shooter or the details of the shooting. They were not of the type torender Brown unworthy of belief, despite his criminal history and the immunity conferred by theUS Attorney for his drug selling activity and other matters (see People v Thompson, 79 AD3d 1269, 1271 [2010]; People v Gragnano, 63 AD3d1437, 1441-1442 [2009], lv denied 13 NY3d 939 [2010]).
Defendant's conduct in shooting Brown repeatedly at close range with a semiautomatichandgun, and his confession that he operated as the gang's shooter, used hollow-point bullets toavoid forensic traces and should have used a stronger weapon to ensure the victim's demise, fullysupport the jury's conclusion that defendant intended to kill Brown and engaged in conduct thattended to effect Brown's death and, thus, its guilty verdict of attempted murder in the seconddegree (compare People v Wallace,8 AD3d 753, 755-756 [2004], lv denied 3 NY3d 682 [2004]). Likewise meritless,given the foregoing testimony, are defendant's claims that the evidence "merely placed [him] atthe scene of the crime and in the vehicle driven by [Rose]" and that it failed to credibly supportthe assault, robbery or weapon possession charges. Accepting the jury's credibilitydeterminations, we discern no grounds for disturbing its verdict.
Defendant further challenges County Court's Molineux ruling, after a hearing,allowing evidence regarding his gang membership and role. This evidence stemmed from theconfession to the testifying inmate in which defendant explained his role and motives in this veryshooting. As such, the inmate's testimony was a "narrative description of the crimes charged[which] necessitate[d] mention of the uncharged criminal conduct [and bad acts, because they]. . . are inextricably interwoven" (People v Gantz, 104 AD2d 692, 692[1984]; see People v Ciembroniewicz, 169 AD2d 929, 930-931 [1991]). Thoseadmissions were admissible as a matter of law as they were probative of defendant's specificintent and motive in this shooting, as well as the manner in which he accomplished these crimesand his identity as the shooter, all disputed issues (see People v Lee, 80 AD3d 877, 880 [2011]; see also People vAlvino, 71 NY2d 233, 241-242 [1987]). While the court's ruling could have been moreexplicit, the record reflects that, during its combined Sandoval-Molineux inquiry, itengaged in the requisite "case-specific discretionary balancing of probity versus prejudice" (People v Westerling, 48 AD3d965, 966 [2008]; cf. People vLindsey, 75 AD3d 906, 908 [2010], lv denied 15 NY3d 922 [2010]). The courtseparately considered each item in the People's Molineux proffer, admitting only thosedirectly related to these crimes and excluding those concerning unrelated gang activity or details.Defendant raised no specific arguments at the hearing on the issue of admissibility or prejudicialeffect of these acts, failing to preserve such claims (see People v Lindsey, 75 AD3d at907-908). Defendant's contention that the court failed to issue a limiting instruction is notpreserved for our review. Were we to review said claim, we would find that the court erred inthis regard (see id. at 908; People v Westerling, 48 AD3d at 968) but, in light ofthe overwhelming evidence of guilt, the error was harmless (see People v Lindsey, 75AD3d at 908).
Finally, we find no error or abuse of discretion in County Court's discharge of juror No. 5,after a thorough inquiry of the absent juror disclosed that he was unavailable to continue [*4]serving and there was no likelihood that he would be appearingwithin two hours (see CPL 270.35 [1], [2]; People v Jeanty, 94 NY2d 507, 511,513-514 [2000]; People v Ballard,51 AD3d 1034, 1035-1036 [2008], lv denied 11 NY3d 734 [2008]). The court spoketo the juror twice on the telephone, once with counsel present who had an opportunity to beheard, learning that, due to the inclement winter weather and widespread power outages, heneeded to oversee emergency storm coverage for his radio station employer and could not appear.
Defendant's remaining claims have been considered and we find that they similarly lackmerit.
Mercure, J.P., Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed.