| People v McNeill |
| 2013 NY Slip Op 04158 [107 AD3d 1430] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v EffrinMcneill, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered November 7, 2011. The judgment convicted defendant, upon a jury verdict, ofrobbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of robbery in the first degree (Penal Law § 160.15 [3]). Contrary todefendant's contention, County Court properly denied his request to charge robbery in thethird degree (§ 160.05) as a lesser included offense of robbery in the first degree.We conclude that there was no reasonable view of the evidence that defendant committedrobbery in the third degree and not robbery in the first degree inasmuch as there was noevidence that defendant used physical force other than the threatened use of a knife, i.e.,a dangerous instrument (see Penal Law §§ 10.00 [13]; 160.15 [3]),to steal the property (see Peoplev James, 11 NY3d 886, 888 [2008]). Indeed, the store clerk testified thatdefendant displayed and threatened the use of a knife and identified a knife that wasrecovered from defendant as being the knife that was used during the robbery.Furthermore, although the surveillance recording of the robbery does not clearly showthe knife in defendant's hand, the recording confirms the clerk's testimony that he steppedback when he saw the knife.
Defendant further contends that he was denied a fair trial by the admission of awitness's prior consistent statement, to wit, the store clerk was permitted to testify that hetold his store manager and a police officer that the perpetrator displayed a knife duringthe robbery. Although "[a]n out-of-court statement made by a witness [that] is consistentwith that witness's trial testimony is generally inadmissible as hearsay" (People v Mack, 89 AD3d864, 866 [2011], lv denied 18 NY3d 959 [2012]), any error in admitting thattestimony was harmless. There is overwhelming evidence of defendant's guilt and thereis no significant probability that he would have been acquitted but for the error (seePeople v Corchado, 299 AD2d 843, 844 [2002], lv denied 99 NY2d 581[2003]; People v Alshoaibi, 273 AD2d 871, 872 [2000], lv denied 95NY2d 960 [2000]; see generally People v Crimmins, 36 NY2d 230, 241-242[1975]).
We agree with defendant that the court, in denying his motion to suppress, failed toplace its findings of fact and conclusions of law upon the record as required by CPL710.60 (6). "The [*2]failure to do so is not fatal,however, where, as here, there has been a full and fair hearing. In such instances, this[C]ourt may make its own findings of fact and conclusions of law" (People vLewis, 172 AD2d 1020, 1021 [1991]; see People v Clark, 262 AD2d 1051,1051 [1999], lv denied 93 NY2d 1016 [1999]). Defendant moved to suppresscertain tangible evidence, contending that it was seized as the result of an arrest that wasmade without probable cause. We reject that contention. The evidence from thesuppression hearing establishes that a store clerk provided the police with a descriptionof the clothing worn by the perpetrator and the unique vehicle he used to leave thescene—a bicycle that was towing a trailer. Based on a radio dispatch containingthat information, an officer detained a person riding a bicycle that was towing a trailernear the scene of the robbery. The person riding the bicycle informed the officer that hehad just been given the bicycle by another man. That person pointed out another personwho was walking nearby, and whose age and clothing fit the description of theperpetrator. Additionally, police officers found items matching the description of thestolen property in the trailer that was attached to the bicycle in question, and defendantwas found in possession of a blue pocket knife that was consistent with the knifedisplayed during the robbery. We thus conclude that the police had probable cause toarrest defendant, i.e., they had "knowledge of facts and circumstances 'sufficient tosupport a reasonable belief that an offense has been or is being committed' " (Peoplev Maldonado, 86 NY2d 631, 635 [1995]). Finally, we also conclude that thesentence is not unduly harsh or severe. Present—Smith, J.P., Fahey, Carni,Sconiers and Whalen, JJ.