| People v Young |
| 2017 NY Slip Op 05768 [152 AD3d 981] |
[*1]
| 1 The People of the State of New York,Respondent, v Khalief Young, Appellant. |
David E. Woodin, Catskill, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Rose, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered April 11, 2014, upon a verdict convicting defendant of the crime of robbery in the thirddegree.
After defendant was arrested and charged with robbery in the second degree and robbery inthe third degree, he filed a motion to, among other things, suppress certain incriminatingstatements made to detectives, as well as physical evidence seized from his residence pursuant toa search warrant. Following a suppression hearing, County Court denied defendant's motion. Ajury trial ensued, after which defendant was acquitted of robbery in the second degree andconvicted of robbery in the third degree. He was then sentenced, as a second felony offender, to aprison term of 3
Initially, defendant's challenge to the legal sufficiency of the evidence is unpreserved for ourreview as he made only a generalized motion to dismiss at the conclusion of the People's case (see People v Hawkins, 11 NY3d484, 492 [2008]; People vMorgan, 149 AD3d 1148, 1149 [2017]). Nevertheless, in reviewing the weight of theevidence, we necessarily consider each element of the charge to determine whether it was provenbeyond a reasonable doubt (see People vNewell, 148 AD3d 1216, 1220 [2017], lv denied 29 NY3d 1035 [2017]; People v Bullock, 145 AD3d 1104,1105 [2016]). As relevant here, a person commits the crime of robbery in the third degree whenhe or she forcibly steals property (see Penal Law § 160.05), and a convictionof this crime may be based on defendant's role as an accomplice (see Penal Law§ 20.00; People vRupert, 118 AD3d 1126, 1126 [2014]).
At trial, the victim testified that he was walking in his inner-city neighborhood when he[*2]was attacked from behind and fell to the pavement where hewas then punched and kicked multiple times by a group of assailants who took $35 and hisidentification card from his pockets before fleeing the scene. The People introduced asurveillance video of the robbery, which captures images corroborating the victim's testimonyand depicts one of the perpetrators wearing a red baseball cap and a jacket with distinctive greypatches on the shoulders. Notably, the video shows this individual making repeated physicalcontact with the victim, including in the area of his pockets, and also shows other members of thegroup doing the same. In the hours before the robbery, another surveillance video depicted theindividual dressed in the same cap and jacket at a convenience store in close proximity to theincident, and two detectives identified him as defendant based upon prior dealings with him inthe neighborhood. Defendant admitted in his statement to the detectives that he was theindividual wearing the red cap in the video of the robbery, but denied that he had any contactwith the victim. Although a different verdict would not have been unreasonable because theproperty allegedly taken from the victim was never recovered, after viewing the video in a neutrallight and deferring to the jury's credibility determinations regarding the victim's testimony, we aresatisfied that the verdict was not against the weight of the evidence (see People v Green, 141 AD3d1036, 1038 [2016], lv denied 28 NY3d 1072 [2016]; People v Gaudiosi, 110 AD3d1347, 1348-1349 [2013], lv denied 22 NY3d 1040 [2013]; People v Miller, 93 AD3d 882,883 [2012], lv denied 19 NY3d 975 [2012]; People v Jones, 70 AD3d 1253, 1254 [2010]).
Nor are we persuaded by defendant's argument that his incriminating statements to detectivesshould have been suppressed as the product of an illegal arrest. The People concede that theybore the burden of establishing probable cause for the arrest producing these statements(see CPL 140.10 [1] [b]; People v Parris, 83 NY2d 342, 346 [1994]; People v Wolfe, 103 AD3d 1031,1033 [2013], lv denied 21 NY3d 1021 [2013]). "Probable cause does not require proofsufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient tosupport a reasonable belief that an offense has been . . . committed by the personarrested" (People v Garcia, 131AD3d 732, 734 [2015] [internal quotation marks and citation omitted], lv denied 27NY3d 997 [2016]). We must agree that once detectives viewed the surveillance videos andidentified defendant as the individual wearing the red baseball cap and distinctive jacket,probable cause existed for his arrest (seePeople v Stroman, 107 AD3d 1023, 1024 [2013], lv denied 21 NY3d 1046[2013]; People v Bethune, 65 AD3d749, 751 [2009]; People vTillman, 57 AD3d 1021, 1022 [2008]). Moreover, the fact that one of the detectives maynot have believed that he had probable cause to arrest defendant until defendant made hisincriminating statement does not vitiate the propriety of the arrest, as the detective's subjectivebelief does not control the inquiry (seePeople v Cooper, 38 AD3d 678, 679 [2007]; People v Jones, 219 AD2d 417,421 [1996], affd 90 NY2d 835 [1997]). Indeed, "[w]here a police officer objectivelypossesses enough information to establish probable cause but simply does not realize it when thearrest is made, there is no improper police conduct warranting invocation of the deterrent actionof suppression" (People v Lopez, 95 AD2d 241, 247-248 [1983], lv denied 60NY2d 968 [1983]).[FN*]
We are similarly unpersuaded by defendant's contention that County Court erred in [*3]denying that part of the motion that sought to suppress the redbaseball cap seized from his residence pursuant to a search warrant. The surveillance videodepicting one of the perpetrators wearing this cap, the detectives' identification of that individualand defendant's admission that he was that individual "provided sufficient information to supporta reasonable belief that [such] evidence of a crime would be found in defendant's [residence]"(People v Cherry, 149 AD3d1346, 1348 [2017] [internal quotation marks and citation omitted]; see People v Vanness, 106 AD3d1265, 1266 [2013], lv denied 22 NY3d 1044 [2013]).
Defendant has failed to preserve his claim that the jury verdict is repugnant inasmuch as helodged no objection to it prior to the jury being discharged (see People v Alfaro, 66 NY2d985, 987 [1985]; People v Dale, 115AD3d 1002, 1006 [2014]; People vCoville, 73 AD3d 1232, 1233 [2010]). In any event, were we to review this claim, wewould find it to be without merit (seePeople v Muhammad, 17 NY3d 532, 539-540 [2011]; People v Kramer, 118 AD3d 1040,1043 [2014]). Further, as defendant concedes, his related contention that the charge of robbery inthe third degree should have been submitted to the jury as a lesser included offense of robbery inthe second degree was waived by his failure to make such a request to County Court (seeCPL 300.50 [1]; People v David, 255 AD2d 620, 621 [1998]).
Finally, given defendant's prior criminal history and his failure to acknowledge anywrongdoing despite the fact that his crime was caught on camera, we find no abuse of discretionin the sentence imposed nor do we discern any extraordinary circumstances that would warrant areduction of the sentence in the interest of justice (see People v McGowan, 149 AD3d 1161, 1163 [2017], lvdenied 29 NY3d 999 [2017]; Peoplev Martin, 116 AD3d 1166, 1168 [2014], lv denied 23 NY3d 1039 [2014]).Defendant's remaining contentions have been considered and found to be lacking in merit.
Peters, P.J., Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant's related contentionthat his incriminating statements should have been suppressed because the indelible right tocounsel attached immediately upon his warrantless arrest is patently without merit since thiscircumstance did not trigger the commencement of the criminal action (see People vPelkey, 100 AD2d 663, 664 [1984]; People v Mathis, 77 AD2d 720, 720 [1980]).