| People v Cole |
| 2017 NY Slip Op 03989 [150 AD3d 1476] |
| May 18, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Wayne Cole, Appellant. |
Stephen W. Herrick, Public Defender, Albany (Christopher J. Ritchey of counsel), forappellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered April 30, 2014, upon a verdict convicting defendant of the crimes of attempted robberyin the second degree and assault in the second degree.
On the afternoon of March 30, 2013, a 92-year-old woman (hereinafter the victim) left herhome and walked to a CVS pharmacy located on Central Avenue in the City of Albany. Whilethe victim was shopping, defendant entered the store briefly, wearing a dark-colored jacket withwhite stripes, a red knit beanie and dark glasses, and then exited. A short time later, defendantagain entered the store and approached the pharmacy counter, where the victim sat waiting in achair. Following a brief conversation with a pharmacy technician, defendant again left the store.After retrieving a black garbage bag from across the street, defendant removed his jacket,carefully folded and placed it inside of the bag and waited on the sidewalk outside of the CVS.When the victim emerged, defendant crossed the street and pursued the victim on a parallel track,during the course of which he was captured on a surveillance camera as he paused to cinch hisdark hooded sweatshirt tightly around his face—obscuring the red knit beanie—anddon a pair of gloves. The victim then crossed Central Avenue and, as she neared the intersectionof Robin Street and Washington Avenue, defendant accosted her, knocked her to the ground,grabbed her by both arms and attempted to take her purse. In the course thereof, the victim'shearing aid was "knocked out," and she sustained a significant fracture to the middle finger of herleft hand, as well as severe swelling and bruising to, among other areas, her rightarm.
[*2] As a result of this incident, defendant wasindicted and charged with attempted robbery in the second degree and assault in the seconddegree. A jury trial ensued, at the conclusion of which defendant was convicted as charged andthereafter was sentenced to concurrent prison terms of seven years followed by three years ofpostrelease supervision. Defendant's subsequent motion to set aside the verdict was denied,prompting this appeal.
We affirm. Preliminarily, we reject defendant's assertion that the photo array prepared in thismatter was unduly suggestive.[FN1] "Photo arrays are considered unduly suggestiveand improper if they are arranged in a manner which creates a substantial likelihood that thedefendant would be singled out for identification. While the physical characteristics of all thepeople included in an array must be similar, so that the viewer's attention is not particularlydrawn to [the] defendant, there is no requirement that [the] defendant be surrounded by peoplenearly identical in appearance" (People vLind, 20 AD3d 765, 766-767 [2005] [internal quotation marks, brackets and citationsomitted], lv denied 5 NY3d 830 [2005]; see People v Pleasant, 149 AD3d 1257, 1257 [2017]; People v Smith, 122 AD3d 1162,1163 [2014]). Although the People bear the burden of "establish[ing] the reasonableness of thepolice conduct and the lack of any undue suggestiveness in a pretrial identification procedure, itis the defendant who bears the ultimate burden of proving that the procedure was undulysuggestive" (People v Smith, 122 AD3d at 1163 [internal quotation marks and citationsomitted]; see People v Al Haideri,141 AD3d 742, 743 [2016], lv denied 28 NY3d 1025 [2016]).
As we are satisfied that the People met their initial burden in this regard, we turn todefendant's claimed infirmity in the array—namely, that of the six black men depictedtherein, he was the only one with a freckled or pockmarked complexion, which was the salientfacial characteristic observed by the identifying witness; accordingly, defendant's argumentcontinues, the identifying witness's attention necessarily was drawn to his picture. Uponreviewing the subject array, we disagree.
The array was comprised of six photographs, taken under similar lighting conditions anddisplaying virtually identical backgrounds, of six black men with little or no visiblehair—all of whom were around the same age and each of whom was wearing a yellowjumpsuit. At least three of the six individuals depicted in the array had similarly uneven skintone, and the purported freckles or pockmarks cited by defendant were not sufficiently visible so"that defendant's photo jumped out at the viewer based on the way the array was organized,"thereby signaling that he was the likely culprit (People v Lind, 20 AD3d at 767).Accordingly, we discern no basis upon which to disturb County Court's denial of defendant'ssuppression motion (see People vPleasant, 149 AD3d 1257, 1258 [2017]; People v Ruiz, 148 AD3d 1212, 1214-1215 [2017]; People v Matthews, 101 AD3d1363, 1364-1365 [2012], lv denied 20 NY3d 1101 [2013]) and, similarly, have noquarrel with the subject witness's in-court identification of defendant at trial.
Defendant's challenge to the admissibility of the victim's out-of-court statements to, amongothers, responding emergency services personnel, is equally unavailing. The crux of defendant'sargument on this point is that, inasmuch as the People succeeded in having thevictim—who suffered from dementia—declared to be incompetent to testify at trial(see CPL 60.20 [1]), the People should not have been able to utilize the victim'sout-of-court statements, which implicated defendant in the charged crimes, simply because thevictim was alert and oriented at the time such statements were made. Again, we disagree.
"An out-of-court statement is properly admissible under the excited utterance exception [tothe hearsay rule] when made under the stress of excitement caused by an external event, and notthe product of studied reflection and possible fabrication. Underlying this exception is theassumption that a person under the influence of the excitement precipitated by an externalstartling event will lack the reflective capacity essential for fabrication and, accordingly, anyutterance he [or she] makes will be spontaneous and trustworthy" (People v Johnson, 1 NY3d 302,306 [2003] [internal quotation marks and citation omitted]; see People v Hibbert, 134 AD3d 957, 957 [2015], lv denied28 NY3d 930 [2016]). Where, as here, the declarant is deemed incompetent to testify at trial, thequestion becomes whether he or she was competent at the time that the out-of-court statementswere made (see People v Sullivan, 117 AD2d 476, 478-479 [1986], lv denied 68NY2d 918 [1986]).
At trial, a firefighter—employed by the City of Albany and trained as an emergencymedical technician—testified that his fire station received a report of a traumatic injury onthe afternoon of March 30, 2013. Approximately one minute later, the firefighter and othersarrived at the intersection of Washington Avenue and Robin Street in the City of Albany, wherehe observed the victim—"[v]ery upset and in distress." Although the victim was sitting inthe back of a vehicle when the firefighter first encountered her, he testified that she "looked likeshe had been on the ground" as she was dirty and had "road gravel on her legs." As the firefighterapproached the victim to inquire as to what had happened, the victim spontaneously stated, "Hetook my purse" or "[H]e tried to take my purse." In response to the firefighter's inquiry as to theextent of her injuries, the victim indicated that she had been "thrown to the ground" anddescribed pain to her left hand and knee, and the firefighter observed injuries that were consistentwith the victim's description of the assault.
In addition to the foregoing, two other individuals (a father and his daughter), who cameupon the scene while the assault was still in progress, also testified as to statements made by thevictim immediately following the incident. The daughter testified that, as she and her fatherapproached the subject intersection in their vehicle, she heard a woman screaming for help andimmediately pulled over, whereupon she saw the victim "being dragged backwards into the busstop" at that location. When the father exited the vehicle, approached and inquired as to what washappening, the individual who was dragging the victim—later identified asdefendant—indicated that he was just trying to help her up from the ground; in response,the victim "said no very emotionally and with conviction" and was "very adamant that that wasnot the case," prompting the daughter to call 911. Although the daughter could not recall thevictim's exact words at this point, she testified that the victim said something along the lines of"he tried to take my purse." The father offered similar testimony, testifying that, in response toher assailant's claim that he was just trying to help her up, the victim exclaimed, "[M]y bag, mybag." Defendant challenged the admissibility of such statements at trial, arguing that the victimwas not competent at the time that the statements were made.[FN2]
[*3] While the victim indeed appeared "frazzled," the firefighter, who had responded to"thousands of calls a year" over the course of a 10-year period, testified that such behavior was"typical" of someone who had suffered "[a] traumatic experience." As for the victim's demeanorand mental status, the firefighter testified that the victim was "[a]lert and oriented. She knewexactly where she was. She knew exactly what happened to her." The firefighter further testifiedthat the victim responded to all of his questions appropriately, such as indicating where she livedand where she had been immediately prior to the assault, and rejected any assertion that thevictim was confused. Such testimony, in our view, was more than sufficient to establish that thevictim made the statements at issue while under the stress caused by the attempted robbery andassault and, further, was competent at the time that she made them. Accordingly, County Courtproperly admitted such statements under the excited utterance exception to the hearsay rule (see People v Reyes, 144 AD3d1683, 1685 [2016]; People v Knapp, 139 AD2d 931, 931 [1988], lv denied72 NY2d 862 [1988]). Moreover, the victim's statements also were properly admissible underCPL 60.20 (2), as there was other corroborative evidence (see infra) tending to establishboth the commission of the underlying crimes and defendant's connection thereto (see People v Petrie, 3 AD3d 665,667 [2004]; see also People v Jones,110 AD3d 1484, 1485 [2013], lv denied 22 NY3d 1157 [2014]).
As for defendant's challenge to the legal sufficiency and/or weight of the evidence, "[a]person is guilty of robbery in the second degree when he [or she] forcibly steals property andwhen . . . [i]n the course of the commission of the crime or of immediate flighttherefrom, he or [she] . . . [c]auses physical injury to any person who is not aparticipant in the crime" (Penal Law § 160.10 [2] [a]). An attempt to commit acrime is accomplished "when, with intent to commit a crime, [a person] engages in conductwhich tends to effect the commission of such crime" (Penal Law § 110.00). Finally,insofar as is relevant here, "[a] person is guilty of assault in the second degree when. . . [w]ith intent to cause physical injury to a person who is [65] years of age orolder, he or she causes such injury to such person, and the actor is more than [10] years youngerthan such person" (Penal Law § 120.05 [12]). "A defendant's intent to commit aparticular offense may be inferred from his or her conduct and from the surroundingcircumstances" (People v Ward, 141AD3d 853, 854 [2016] [internal quotation marks, brackets and citations omitted]).
As noted previously, the firefighter, the father and the daughter each testified as to thestatements made by the victim at the scene, and the daughter recounted her observations of thevictim screaming for help as she was being dragged along the sidewalk by her assailant. Inaddition to the foregoing, the victim's treating physician testified as to the injuries that the victimsustained as a result of the assault, which included a badly fractured middle finger on her lefthand, and additional proof was tendered to establish the respective ages of the victim anddefendant at the time thereof. With respect to the issue of identification, the daughter indeed wasunable to identify defendant as the perpetrator, but both she and her father provided detaileddescriptions of the victim's assailant and the specific and distinctive clothing that he waswearing—descriptions that were entirely consistent with both defendant's physicalcharacteristics and the clothing that subsequently was seized from defendant's residence and aneighbor's apartment (and admitted into evidence at trial)—and the father thereafteridentified defendant, both prior to and at trial, as the victim's assailant.
In addition to the father's testimony on this point, the People introduced surveillance [*4]footage from various vantage points, which depicted defendantwalking behind the victim on the way to CVS, twice entering the store while the victim wasinside (on one occasion standing a short distance away from and looking directly at her), waitingoutside on the sidewalk for the victim to emerge (during the course of which he removed hiswhite-striped jacket), following the victim from across the street after she exited the store(pausing to pull the hood of his sweatshirt over his red knit beanie, cinching the hood down andputting on a pair of gloves) and, a short time later, crossing Robin Street behind thevictim—all before returning to his residence (once again wearing the striped jacket and,this time, with his red knit beanie plainly visible). Although defendant denied being the persondepicted on the street surveillance videos, he admitted to law enforcement officials that he wasthe individual seen on the CVS videos. Further, after the police released photographs taken fromthe CVS videos to the media, three individuals came forward and identified defendant as theperson depicted therein. Finally, with respect to the issue of intent, defendant's calculated actionsin stalking the victim and attempting to conceal his identity speak for themselves. Accordingly,upon reviewing the record as a whole, we find that the verdict is supported by legally sufficientevidence and is in accord with the weight of the evidence.
Defendant's remaining contentions do not warrant extended discussion. Defendant's claim ofprosecutorial misconduct, which finds its roots in certain allegedly improper comments made bythe prosecutor during the People's summation, is—in the admitted absence of timelyobjections—unpreserved for our review (see People v Rivera, 124 AD3d 1070, 1074-1075 [2015], lvdenied 26 NY3d 971 [2015]; Peoplev Green, 119 AD3d 23, 30 [2014], lv denied 23 NY3d 1062 [2014]). Further,"corrective action in the interest of justice is unwarranted . . . [where, as here,] thechallenged statements generally constituted fair comment on the evidence[,] . . .were made in response to defense counsel's summation . . . and . . .were not so pervasive or flagrant as to require reversal" (People v Fomby, 101 AD3d 1355, 1357 [2012] [internal quotationmarks and citation omitted]).
Finally, we reject defendant's claim that the sentence imposed was harsh and excessive. "It iswell settled that a sentence that falls within the permissible statutory range[ ] will not bedisturbed unless it can be shown that the sentencing court abused its discretion or thatextraordinary circumstances exist warranting a modification in the interest of justice" (People v Simmons, 122 AD3d1169, 1169 [2014] [internal quotation marks, brackets and citations omitted], lvdenied 25 NY3d 1171 [2015]). Here, defendant preyed upon and attacked an elderly womansuffering from dementia—conduct for which, according to the presentence investigationreport, he refused to accept responsibility and, hence, expressed no hint of remorse. In light of thecurrent offenses and defendant's prior criminal history, we do not find the sentence imposed to beharsh or excessive; we discern no extraordinary circumstances or an abuse of discretion thatwould warrant a reduction of the sentence in the interest of justice. Accordingly, the judgment ofconviction is in all respects affirmed.
McCarthy, J.P., Garry, Rose and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:It is unclear whether defendant ischallenging a particular witness's in-court identification of him or, rather, is contending thatCounty Court erred in denying his motion to suppress the pretrial identification following theWade hearing. Either way, we discern no error on the part of County Court.
Footnote 2:We note in passing that, in hisbrief, defendant does not challenge the victim's out-of-court statements made to the policedetective who interviewed the victim at the hospital "right after the incident," at which time thevictim indicated "that a black male older than [the detective] had tried to take her purse, but thatshe didn't let it go."