| People v Hough |
| 2017 NY Slip Op 04584 [151 AD3d 1591] |
| June 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v RonaldHough, Jr., Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of counsel), fordefendant-appellant.
Ronald Hough, Jr., defendant-appellant pro se.
John J. Flynn, District Attorney, Buffalo (Julie Bender Fiske of counsel), for respondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered April 8,2015. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree,attempted murder in the first degree and criminal possession of a weapon in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofrobbery in the first degree (Penal Law § 160.15 [2]), attempted murder in the firstdegree (§§ 110.00, 125.27 [1] [a] [vii]; [b]), and criminal possession of aweapon in the second degree (§ 265.03 [3]). In his main and pro se supplementalbriefs, defendant contends that his conviction should be reversed inasmuch as County Courterred in denying suppression of his statements to the police, relief that defendant had sought onthe ground that he was detained without reasonable suspicion and questioned without the benefitof Miranda warnings. We reject that contention. Based on the evidence adduced at thesuppression hearing, we conclude that the court properly found that the stop and brief detentionof defendant was, from its outset, a level three encounter under De Bour (see People vDe Bour, 40 NY2d 210, 223 [1976]; see also People v Martinez, 80 NY2d 444, 448[1992]; People v Hicks, 68 NY2d 234, 238 [1986]). The court properly determined thatthe police officers' detection of the odor of burning marihuana emanating from the vicinity ofdefendant and his walking companion supplied the officers with reasonable suspicion of criminalactivity sufficient to warrant stopping both men (see People v Norman, 142 AD3d 1107, 1108 [2016], lvdenied 28 NY3d 1148 [2017]; People v Lightfoot, 124 AD3d 802, 803 [2015], lv denied25 NY3d 990 [2015]; cf. People vWalker, 128 AD3d 1499, 1500 [2015], lv denied 26 NY3d 936 [2015]).Moreover, the officers' level of suspicion was increased when defendant's companionimmediately fled and, during the ensuing chase, displayed and discarded a handgun, which waspromptly recovered by the officers. The evidence at the suppression hearing established that onlyat that point was defendant, who had been placed unhandcuffed in the rear of a patrol vehicleafter the gun was sighted, briefly questioned before being released.
Moreover, the court properly determined that, to the extent that defendant may have beensubjected to custodial questioning with respect to his name and other pedigree information,defendant's answers to those questions need not be suppressed even though the questions werenot preceded by Miranda warnings (see People v Rodney, 85 NY2d 289, 293[1995]; People v Carrasquillo, 50AD3d 1547, 1548 [2008], lv denied 11 NY3d 735 [2008]). To the extent thatdefendant may have been subjected to custodial interrogation, meaning questioning or itsfunctional equivalent intended to elicit an incriminating response (see generally Rhode Islandv Innis, 446 US 291, 300-301 [1980]; People v Ferro, 63 NY2d 316, 321-323 [1984],cert denied 472 US 1007 [1985]), we conclude that the impact of defendant's unwarnedanswer to such questioning, i.e., that he did not know his gun-discarding companion, was ofminimal impact in demonstrating defendant's guilt of the charged crimes. We therefore furtherconclude that any error on the part of the court in refusing to suppress that single nonpedigreestatement of defendant is harmless beyond a reasonable doubt (see People v Dean, 145 AD3d1633, 1633 [2016]; see generally People v Crimmins, 36 NY2d 230, 237[1975]).
We conclude that defendant's challenge to the sufficiency of the evidence with respect to hisintent to kill the victim is unpreserved for our review (see People v Tyler, 43 AD3d 633, 633 [2007], lv denied 9NY3d 1010 [2007]; see also People v Gray, 86 NY2d 10, 19 [1995]) and, in any event, itis without merit. It is well established that a defendant's "[i]ntent to kill may be inferred from[his] conduct as well as the circumstances surrounding the crime" (People v Lopez, 96 AD3d 1621,1622 [2012], lv denied 19 NY3d 998 [2012] [internal quotation marks omitted]), and thata " 'jury is entitled to infer that a defendant intended the natural and probableconsequences of his acts' " (People v Schumaker, 136 AD3d 1369, 1370 [2016], lv denied27 NY3d 1075 [2016], denied reconsideration 28 NY3d 974 [2016]; see People v Bueno, 18 NY3d160, 169 [2011]; People vBrown, 120 AD3d 954, 955-956 [2014], lv denied 24 NY3d 1118 [2015]).Further, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence withrespect to the issue whether defendant possessed the intent to kill (see Schumaker, 136AD3d at 1371; Brown, 120 AD3d at 955-956; see generally People v Bleakley, 69NY2d 490, 495 [1987]).
We further conclude that the testimony of the accomplice was sufficiently corroborated (see People v Davis, 28 NY3d 294,302-303 [2016]; People v Hilkert,145 AD3d 1609, 1609-1610 [2016], lv denied 29 NY3d 949 [2017]; see generally People v Reome, 15NY3d 188, 191-192 [2010]; People v Breland, 83 NY2d 286, 292-294 [1994]), andwe likewise conclude that the jury did not fail to give that testimony the weight it should beaccorded on the issue of defendant's identity as the robber and shooter (see generallyBleakley, 69 NY2d at 495).
We have considered defendant's remaining contentions raised in his pro se supplementalbrief, and we conclude that they are without merit. Finally, the sentence is not unduly harsh orsevere. Present—Whalen, P.J., Lindley, DeJoseph, NeMoyer and Curran, JJ.