| People v Newell |
| 2017 NY Slip Op 01595 [148 AD3d 1216] |
| March 2, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v LevonNewell, Appellant. |
John T. Casey Jr., Troy, for appellant.
Joel E. Abelove, District Attorney, Troy (Vincent J. O'Neil of counsel), for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.),rendered October 17, 2012, upon a verdict convicting defendant of the crimes of robbery in thefirst degree (two counts) and attempted robbery in the first degree (two counts).
Defendant was charged in a multi-count indictment with attempted murder in the seconddegree, assault in the first degree, two counts of robbery in the first degree (causing seriousphysical injury), two counts of robbery in the first degree (armed with a deadly weapon),attempted robbery in the first degree (causing serious physical injury) and attempted robbery inthe first degree (armed with a deadly weapon). The charges stemmed from an incident thatoccurred on the evening of October 3, 2011 in the City of Troy, Rensselaer County, during thecourse of which the two victims—Gary Donnelly and Denaya Tremont—wereforcibly relieved of certain personal property and Donnelly was shot with a sawed-off shotgunwielded by defendant's codefendant, Rahcief Collier. Defendant, who was in the line of fire, alsosustained a gunshot wound to his left arm.
Donnelly testified at trial that, on the day in question, he received a text message fromCollier, who was looking to purchase some marihuana. The two agreed to meet later thatevening. At approximately 9:30 p.m., Donnelly and Tremont arrived at the agreed-upon locationin a Jeep Wrangler belonging to Donnelly's aunt and, with the windows to the vehicle rolleddown, awaited Collier's arrival. Eventually, another vehicle arrived and two men exited; Collier,armed with what Donnelly described as a sawed-off shotgun, approached the driver's side of the[*2]Jeep Wrangler, while the other man—later determinedto be defendant—approached the passenger side of the vehicle.[FN1] Donnelly testified that Collier "put the gun to[Donnelly's] face and told [Donnelly] to give him everything and that he was going to pull thetrigger." While this was occurring, defendant was "scrambling to get in to get the [passenger]door opened," whereupon defendant "pulled [Tremont] out" of the vehicle. As Donnelly focusedhis attention on defendant, who "was just grabbing at anything he could, trying to get something,"Collier struck Donnelly in the back of the head with what felt like the butt of the shotgun. Inresponse, Donnelly grabbed the barrel of the shotgun, "gave [Collier] a shove back" and againturned his attention toward defendant. When Donnelly "turned back around" to Collier, Collierfired the shotgun, shooting both Donnelly and defendant, with Donnelly sustaining an injury tohis left forearm that resulted in intense pain and profuse bleeding and required two surgeries torepair. According to Donnelly, the items taken from the vehicle included, among other things, hishouse key and Tremont's cell phone. Tremont's testimony mirrored Donnelly's account of theincident, stating that she was "ripped . . . out of the car" by one of theassailants—again, later determined to be defendant—and that he, in turn, took hercell phone.
Following a jury trial, defendant was convicted of two counts of robbery in the first degree(pertaining to Tremont's cell phone) and two counts of attempted robbery in the first degree(pertaining to certain items belonging to Donnelly). Defendant thereafter was sentenced to 15years in prison followed by five years of postrelease supervision upon his robbery convictionsand 10 years in prison followed by five years of postrelease supervision upon his attemptedrobbery convictions—said sentences to run concurrently. This appeal by defendantensued.[FN2]
Initially, we reject defendant's claim that County Court erred in denying his request for aDunaway hearing. "A motion seeking suppression of evidence must state the ground orgrounds of the motion and must contain sworn allegations of fact supporting such grounds" (People v Desmond, 118 AD3d1131, 1133 [2014] [internal quotation marks, ellipsis and citation omitted], lv denied24 NY3d 1002 [2014]). Notably, "[a] hearing in this regard is neither automatic nor generallyavailable simply for the asking" (Peoplev Briskin, 125 AD3d 1113, 1117 [2015] [internal quotation marks, brackets andcitations omitted], lv denied 25 NY3d 1069 [2015]). Here, as County Court aptlyobserved, no sworn allegations of fact were offered in support of defendant's request; rather,defendant merely asked the court "to determine if in fact the People, and its agents in lawenforcement[,] had probable cause to detain, arrest and search defendant and seize tangibleproperty at the time of arrest." Under these circumstances, County Court did not abuse itsdiscretion in denying defendant's request for a Dunaway hearing (see id. at 1117;compare People v Mabeus, 47AD3d 1073, 1074-1075 [2008]; People v McNair, 28 AD3d 800, 800-801 [2006]).
[*3] As to the Huntley hearing conducted in this matter,"[a]t a hearing to suppress statements made to law enforcement officials, the People have theburden of demonstrating, beyond a reasonable doubt, that the defendant's statements werevoluntary and that the defendant knowingly, intelligently, and voluntarily waived his or herMiranda rights prior to making the statements" (People v Johnson, 139 AD3d 967, 969 [2016] [citations omitted],lv granted 28 NY3d 939 [2016]; see People v Loucks, 125 AD3d 890, 890 [2015], lv denied25 NY3d 1167 [2015]). "If the People meet their burden, the defendant then bears the burden ofpersuasion" (People v Johnson, 139 AD3d at 969 [citations omitted]; see People v Brown, 46 AD3d1128, 1129 [2007]). "Proof of voluntariness compatible with due process depends upon theparticular circumstances—the totality—of each case[, and] [a] court must review allof the surrounding circumstances to see whether the defendant's will has been overborne"(People v Johnson, 139 AD3d at 969-970 [internal quotation marks and citationsomitted]).
Here, a detective with the Troy Police Department testified that, based upon informationidentifying Collier as a suspect in the underlying incident and in light of defendant's knownassociation with Collier, a patrol unit initiated a traffic stop of a vehicle in which Collier anddefendant, among others, were riding. Following this stop, defendant was asked to step out of thevehicle, which he did, and the detective asked defendant "if he would be willing to come to thepolice station and talk." The detective testified that defendant, who was not under arrest at thattime, agreed to this request and was transported to the police station—withouthandcuffs—in a marked patrol vehicle. Upon arriving at the station, defendant was placedin an interview room (the door to which was open), advised of, executed and waived hisMiranda rights and thereafter provided an incriminating oral statement to the police,which was recorded by a video camera. The detective testified, and a review of the videoconfirms, that defendant never asked for the questioning to cease and did not request an attorneyuntil after his oral statement had been reduced to writing—a statement that he then refusedto sign.
Contrary to defendant's present claim, the detective's testimony and the corresponding videorecording establishes—based upon the totality of the circumstances—that defendantvalidly waived his Miranda rights and voluntarily gave an incriminating statement to thepolice (see People v Zayas-Torres,143 AD3d 1176, 1178 [2016]; People v Roseboro, 127 AD3d 998, 999 [2015], lv denied26 NY3d 934 [2015]). At the start of the interview, defendant was advised that he was "not underarrest" and that he was "not being charged with anything" at that time—prompting one ofthe interviewing detectives to explain, "That's why the door's open"; it was not until afterdefendant waived his Miranda rights and gave an incriminating statement that he wasinformed that he no longer was "free to leave." Accordingly, County Court properly concludedthat defendant's statement indeed was voluntary.
Defendant's related claim—that County Court abused its discretion in denying hisrequest to renew his suppression motion (made in the context of a motion in limine)—isequally unpersuasive. "A trial court may reopen a pretrial hearing if it 'is satisfied, upon ashowing by the defendant, that additional pertinent facts have been discovered by the defendantwhich he [or she] could not have discovered with reasonable diligence before the determination'of his [or her] pretrial application" (People v Fuentes, 53 NY2d 892, 894 [1981], quotingCPL 710.40 [4]; accord People vRivera, 124 AD3d 1070, 1071 [2015], lv denied 26 NY3d 971 [2015]). Here, theproffered evidence consisted of an affidavit from defendant and one of the vehicle's otheroccupants attesting to the circumstances surrounding the traffic stop. Inasmuch as defendant'smotion was premised upon "events to which defendant could have testified or otherwise broughtto light at the initial Huntley hearing, we do not find that County Court abused itsdiscretion in denying defendant's motion to reopen" (People v Rivera, 124 AD3d at1071). Finally, to the extent that defendant argues that County Court "promised to hear additionalproof" on this point [*4]and then refused to do so, the portion ofthe suppression hearing transcript upon which defendant relies refers to the admissibility ofdefendant's unsigned written statement and the video recording of his oral statement attrial—not the voluntariness thereof.
Turning to defendant's evidentiary claims, his challenge to the legal sufficiency of theevidence is unpreserved for our review. Defendant made only a general motion for a trial order ofdismissal at the close of the People's case (see People v Thorpe, 141 AD3d 927, 928 [2016], lv denied28 NY3d 1031 [2016]) and failed to renew that motion after he presented his proof (see People v Lancaster, 143 AD3d1046, 1047 [2016], lv denied 28 NY3d 1147, 2017 NY Slip Op 97112[U] [Jan. 20,2017]). Nevertheless, "our weight of the evidence review necessarily involves an evaluation ofwhether all elements of the charged crimes were proven beyond a reasonable doubt" (People v Bullock, 145 AD3d 1104,1105 [2016] [internal quotation marks and citations omitted]).
"A person is guilty of robbery in the first degree when he [or she] forcibly steals property andwhen, in the course of the commission of the crime or of immediate flight therefrom, he [or she]or another participant in the crime . . . [c]auses serious physical injury to any personwho is not a participant in the crime . . . or . . . [i]s armed with a deadlyweapon" (Penal Law § 160.15 [1], [2]). Similarly, a person is guilty of attemptedrobbery in the first degree "when, with intent to commit [such] crime, he [or she] engages inconduct which tends to effect the commission [there]of" (Penal Law § 110.00;see Penal Law § 160.15 [1], [2]). A person "forcibly steals" property whenhe or she "uses or threatens the immediate use of physical force upon another person" in order toeither "overcom[e] resistance to the taking of the property" or to "[c]ompel[ ] the owner of suchproperty . . . to deliver up the property" (Penal Law § 160.00 [1], [2]),and "[t]he requisite mental state for robbery is the intent to permanently deprive the owner of thatproperty" (People v Lamont, 25NY3d 315, 319 [2015] [internal quotation marks and citation omitted]). A defendant's intent,which "is rarely proved by an explicit expression of culpability by the perpetrator" (id. at318-319 [internal quotation marks and citations omitted]), "may be inferred from his [or her]actions and the surrounding circumstances" (People v Molina, 79 AD3d 1371, 1376 [2010], lv denied 16NY3d 861 [2011]; see People vBrown, 100 AD3d 1035, 1036-1037 [2012], lv denied 20 NY3d 1009 [2013]),and the "competing inferences to be drawn regarding the defendant's intent, if not unreasonable,are within the exclusive domain of the finders of fact, not to be disturbed by [this Court]" (People v Bueno, 18 NY3d 160,169 [2011] [internal quotation marks, brackets and citation omitted]). Finally, "[a] defendant maybe held criminally liable for the conduct of another person when, acting with the mentalculpability required for the commission thereof, the defendant solicits, requests, commands,importunes, or intentionally aids such person to engage in such conduct" (People v Andrews, 127 AD3d1417, 1420 [2015] [internal quotation marks, brackets and citations omitted], lvdenied 25 NY3d 1159 [2015]; see Penal Law § 20.00).
Deferring to the jury's credibility determinations, we find that defendant's conviction of twocounts of robbery in the first degree, which was based upon defendant forcibly stealing Tremont'scell phone, is in accord with the weight of the evidence. As noted previously, Donnelly andTremont each testified that defendant forcibly took Tremont's cell phone from her during thecourse of the robbery—at which time Collier was armed with a deadly weapon andDonnelly sustained serious physical injury. Although defendant offered a contrary version of theincident—claiming that Tremont stepped out of the vehicle of her own accord, that he hadno idea what happened to the cell phone that was in her hand, that he never saw "the gun, period,at all" and that his sole involvement in the incident was to "defend" Collier, who was having "anargument" with Donnelly—the jury was free to reject such testimony, and defendant'sintent to engage in the subject crimes may be inferred from his actions and the surroundingcircumstances. Accordingly, we discern no basis upon which to disturb the jury's verdict in thisregard.
[*5] We reach a similar conclusion relative todefendant's conviction of two counts of attempted robbery in the first degree. According to thePeople's theory of the case, as amplified by their bill of particulars, the counts at issue werepredicated upon defendant's attempted forcible taking of both Donnelly's house key and somemoney that was in the pocket of Donnelly's sweatshirt. Consistent with the course charted by thePeople in this regard, County Court charged the jury in the conjunctive as to these particularcounts, stating that, in order to return a verdict of guilty, the jury needed to find that defendant"attempted to forcibly steal money and keys" from Donnelly. During its deliberations, the jurysought clarification on this point, asking, "Are money and keys linked in the charge? Do bothneed to be guilty." The People stood by the language set forth in their bill of particulars and, withcounsels' acquiescence, County Court answered that inquiry in the affirmative. Defendant nowcontends that the record is devoid of proof that he attempted to take any money from Donnelly'ssweatshirt and, therefore, his attempted robbery convictions cannot stand. We disagree.
The case law makes clear that the use of the conjunctive "and"—rather than thedisjunctive "or"—in an indictment charges more than the People statutorily are required toprove. Therefore, despite the People's use of the word "and" in their bill of particulars here, thePeople were not required to prove that defendant attempted to forcibly steal two separate items inorder to sustain the charged crimes (seePeople v Flanders, 25 NY3d 997, 999-1000 [2015]; People v Charles, 61 NY2d321, 327-328 [1984]; People vSutera, 107 AD3d 556, 558 [2013], lv denied 23 NY3d 968 [2014]; People v Molloy, 58 AD3d 404,404 [2009], lv denied 12 NY3d 856 [2009]; see also People v Frascone, 271AD2d 333, 333 [2000]). "The particular nature of the property stolen is not, by statute, a materialelement of the crime of robbery. Robbery merely requires the forcible stealing of property, andproperty is rather broadly defined as any money, personal property . . . or thing ofvalue" (People v Spann, 56 NY2d 469, 473 [1982] [internal quotation marks and citationsomitted]). Moreover, "[w]here an offense may be committed by doing any one of several things,the indictment may, in a single count, group them together and charge the defendant with havingcommitted them all, and a conviction may be had on proof of the commission of any one of thethings, without proof of the commission of the others" (People v Charles, 61 NY2d at327-328 [internal quotation marks and citations omitted]; accord People v Harris, 129 AD3d 1522, 1525 [2015], lvdenied 27 NY3d 998 [2016]).
Even assuming, without deciding, that the testimony adduced at trial fell short of establishingthat defendant attempted to forcibly steal money from Donnelly's sweatshirt pocket, there wasample proof from which the jury could—and did—conclude that defendantattempted to forcibly steal Donnelly's keys. Accordingly, contrary to defendant's assertion, hisconviction of two counts of attempted robbery in the first degree is in accord with the weight ofthe evidence. Defendant's remaining contentions, including his claim that he was denied theeffective assistance of counsel and that the sentence imposed was harsh and excessive, have beenexamined and found to be lacking in merit.
McCarthy, J.P., Lynch, Clark and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Neither Donnelly nor Tremontwere able to identify defendant as the other perpetrator, but the video recording of defendant'soral statement to the police was introduced into evidence at trial, which implicated him in thecharged crimes. Additionally, defendant's own trial testimony placed him at the scene of thecrimes with Collier.
Footnote 2:Collier was tried separately andconvicted of numerous crimes, and this Court recently affirmed his conviction (People v Collier, 146 AD3d 1146[2017]).