| People v Campbell |
| 2014 NY Slip Op 05996 [120 AD3d 827] |
| August 27, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dario Campbell, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Jonathan M. Kratter of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Sharon Y. Brodt, and Roni C. Piplani of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Modica, J.), rendered June 13, 2011, convicting him of assault in the first degree androbbery in the first degree (two counts), upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing (Hollie, J.), of that branch of thedefendant's omnibus motion which was to suppress his statements to law enforcementofficials.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by vacating the conviction of assault in the first degree under count five of theindictment, vacating the sentence imposed thereon, and dismissing that count of theindictment; as so modified, the judgment is affirmed.
The defendant's contention that the counts of assault in the first degree under countfive of the indictment (Penal Law § 120.10 [4]) and robbery in the firstdegree under count six of the indictment (Penal Law § 160.15 [1]) weremultiplicitous is unpreserved for appellate review (see People v Cruz, 96 NY2d857, 858 [2001]; People vSmalls, 81 AD3d 860, 861 [2011]; People v Clymer, 26 AD3d 443 [2006]). Nevertheless,under the circumstances presented here, we review this contention in the interest ofjustice.
"[An indictment] is multiplicitous when a single offense is charged in more than onecount" (People v Alonzo, 16NY3d 267, 269 [2011]; see People v Smalls, 81 AD3d at 861; People v Quinones, 8 AD3d589 [2004]; People v Aarons, 296 AD2d 508 [2002]; People vSenisi, 196 AD2d 376, 381-382 [1994]). Here, the record reflects that the jurycharges regarding the count of assault in the first degree under count five of theindictment and the count of robbery in the first degree under count six of the indictmentwere essentially identical since one cannot commit robbery in the first degree underPenal Law § 160.15 (1) without simultaneously committing assault in thefirst degree under Penal Law § 120.10 (4) (see People v Smalls, 81AD3d at 861). As such, those charges were multiplicitous (see id.).
While the People are correct that, in this case, the dismissal of the multiplicitous[*2]count of assault in the first degree will not affect "thequantum of punishment to be imposed" (People v Smith, 113 AD2d 905, 908[1985]), "the second conviction, even if it results in no greater sentence, is animpermissible punishment" (Ball v United States, 470 US 856, 865 [1985]).Accordingly, as we did in People v Smalls, we will vacate the multiplicitousconviction of assault in the first degree under count five of the indictment, vacate thesentence imposed thereon, and dismiss that count of the indictment (see id. at861; People v Aarons, 296 AD2d at 508).
Contrary to the defendant's contention that his statements to the police were theproduct of an unlawful arrest, the hearing court properly found that the police hadprobable cause to arrest him (seePeople v Prego, 102 AD3d 814 [2013]; People v Capela, 97 AD3d 760 [2012]). Under thecircumstances, and "bearing in mind that '[p]robable cause does not require proofsufficient to warrant a conviction beyond a reasonable doubt' " (People vBlasich, 73 NY2d 673, 680 [1989], quoting People v Bigelow, 66 NY2d417, 423 [1985]), it was reasonable for the police to conclude that it was more probablethan not that the defendant was one of the four participants in a shooting and robbery thathad occurred the previous night (see People v Carrasquillo, 54 NY2d 248, 254[1981]; People v Capela, 97 AD3d at 761). Accordingly, the hearing courtproperly denied that branch of the defendant's omnibus motion which was to suppress hisstatements to law enforcement officials. Rivera, J.P., Hall, Sgroi and Maltese, JJ.,concur.