| People v Hailey |
| 2017 NY Slip Op 06797 [153 AD3d 1639] |
| September 29, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Arthur Hailey, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of counsel), fordefendant-appellant.
Arthur Hailey, defendant-appellant pro se.
John J. Flynn, District Attorney, Buffalo (Julie Bender Fiske of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.),rendered August 26, 2015. The judgment convicted defendant, upon a nonjury verdict, ofattempted robbery in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a nonjury trialof attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [2][b]). According to the victim's testimony, defendant, who was seated in the backseat of thevictim's cab, demanded that the victim "give it up" and stated that he had a gun to the victim'shead. The victim then felt a "metal object" on the back of his head. The victim subsequentlydrove his cab to a convenience store for purposes of withdrawing money from an automatedteller machine. While entering the store together, defendant reminded the victim that he had agun and directed the victim to avoid drawing attention to them.
Based on the above testimony, we reject defendant's contention that the conviction is notsupported by legally sufficient evidence (see generally People v Bleakley, 69 NY2d 490,495 [1987]). The evidence is legally sufficient to establish that defendant displayed whatappeared to the victim to be a firearm (see Penal Law § 160.10 [2] [b]; People v Howard, 92 AD3d 176,179-180 [2012], affd 22 NY3d 388 [2013]; People v Groves, 282 AD2d 278, 278[2001], lv denied 96 NY2d 901 [2001]; People v Jackson, 180 AD2d 756,756-757 [1992], lv denied 80 NY2d 832 [1992]), and that defendant came" 'dangerously near' " to forcibly depriving the victim of property (People v Naradzay, 11 NY3d 460,466 [2008]; see People v Lamont,25 NY3d 315, 319 [2015]; People v Bracey, 41 NY2d 296, 301 [1977], reargdenied 41 NY2d 1010 [1977]). Defendant's intent to rob the victim could reasonably beinferred from defendant's conduct and the surrounding circumstances (see Lamont, 25NY3d at 319; Bracey, 41 NY2d at 301-302; People v Gordon, 119 AD3d 1284, 1286 [2014], lv denied24 NY3d 1002 [2014]). Viewing the evidence in light of the elements of the crime ofattempted robbery in the second degree in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we rejectdefendant's contention that the verdict is against the weight of the evidence with respect to thatcrime (see generally Bleakley, 69 NY2d at 495). We see no basis to disturb SupremeCourt's credibility determinations (see generally id.).
We reject defendant's further contention that the court erred in refusing to suppress thestatements he made to the police while seated in the back of a patrol car, before he was advisedof his Miranda rights. It is well settled that "both the elements of police 'custody' andpolice 'interrogation' must be present before law enforcement officials constitutionally areobligated to provide the procedural safeguards imposed upon them by Miranda"(People v Huffman, 41 [*2]NY2d 29, 33 [1976]; see People v Spirles, 136 AD3d1315, 1316 [2016], lv denied 27 NY3d 1007 [2016], cert denied 580 US&mdash, 137 S Ct 298 [2016]). Here, defendant's statements were not the product of policeinterrogation inasmuch as the officer asked defendant only preliminary questions that "wereinvestigatory and not accusatory" (People v Parulski, 277 AD2d 907, 908 [2000]; seeSpirles, 136 AD3d at 1316; People vBrown, 23 AD3d 1090, 1092 [2005], lv denied 6 NY3d 810 [2006]).
Defendant further contends that he was denied effective assistance of counsel. We note,however, that the sole alleged instance of ineffective assistance specified by defendant, i.e., thatdefense counsel failed to utilize certain exculpatory evidence, is based on matters outside therecord on appeal and thus must be raised by way of a motion pursuant to CPL article 440 (see People v Johnson, 81 AD3d1428, 1428 [2011], lv denied 16 NY3d 896 [2011]; People v Wilson, 49 AD3d 1224,1225 [2008], lv denied 10 NY3d 966 [2008]). Present—Carni, J.P., Lindley,NeMoyer, Curran and Troutman, JJ.