| People v Matthews |
| 2018 NY Slip Op 01499 [159 AD3d 1111] |
| March 8, 2018 |
| Appellate Division, Third Department |
[*1](March 8, 2018)
| The People of the State of New York, Respondent, v TyshenMatthews, Also Known as Tysheen Moore, Also Known as Nitty,Appellant. |
Thomas F. Garner, Middleburgh, for appellant.
Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Washington County (McKeighan,J.), rendered January 3, 2014, upon a verdict convicting defendant of the crimes of robbery in thefirst degree, robbery in the second degree, burglary in the second degree, petit larceny andendangering the welfare of a child.
Defendant, who resided in New York City, sold drugs to three women who resided in theTown of Whitehall, Washington County. When these women began to purchase drugs fromanother individual, defendant and three codefendants devised a plan to rob the competing drugdealer, who was living at a hotel located in the Town of Hampton, Washington County. Duringthe robbery, various electronics and crack cocaine were stolen. After the robbery, defendant andthe codefendants took a taxicab to the bus station in the City of Albany.
During the ensuing investigation, a witness identified defendant as being involved, anddefendant was arrested and charged with robbery in the first degree, robbery in the seconddegree, burglary in the second degree, petit larceny, conspiracy in the fourth degree andendangering the welfare of a child. Defendant made a pretrial motion to, among other things,challenge the probable cause for his arrest. County Court held a Wade/Huntley hearing,but did not render a decision on this issue. After a jury trial, defendant was convicted of all of the[*2]charges except for conspiracy in the fourth degree. He wassentenced to an aggregate prison term of 20 years to be followed by five years of postreleasesupervision. Defendant appealed, and this Court withheld decision and, as relevant here, remittedthe matter for a ruling on defendant's probable cause challenge (147 AD3d 1206, 1207 [2017]).Upon remittal, County Court (Michelini, J.) reviewed the transcript of the priorWade/Huntley hearing and found, among other things, that there was probable cause fordefendant's arrest. Defendant has supplemented his appeal to argue that this determination wasmade in error and that County Court should have conducted a new probable cause hearing.
Initially, we find that the People sufficiently established probable cause for defendant's arrest.At the Huntley/Wade hearing, Officer Daniel J. Stevens testified that a supervisinginvestigator gave him a photograph of defendant and asked him to create a photo array. Hecreated the array, using a database to obtain the photographs of five men with features that weresimilar to defendant's and presented the array to a woman who had been identified as a witness.According to Stevens, the witness indicated that she recognized defendant and, when asked forthe source of her recognition, she answered, "From the trailer in Whitehall that got shot up. He'sone of the guys who robbed the Puerto Ricans of their electronics." Jeffrey Horn, an investigatorwith the State Police, testified that he watched surveillance video taken at the Albany bus stationthe evening after the robbery and observed defendant and the codefendants handling electronicsthat were comparable to those reported as stolen from the motel room. It was Horn who, togetherwith other members of the State Police and the Washington County Undersheriff, arresteddefendant outside of his home. Horn recalled watching defendant's residence from the streetwhile sitting in an unmarked, gray, Chevrolet Impala police vehicle. Horn described theunmarked vehicle as causing them to "st[ick] out" on the street. Horn watched as defendant cameout of his front door and stood on the stoop for a period of time before he noticed the Impala andreturned inside. When defendant left the residence the second time, approximately one-half hourlater, he was arrested. Horn testified that, prior to the arrest, he was aware that the witness hadidentified defendant from the photo array.
"Probable cause does not require proof sufficient to warrant a conviction beyond a reasonabledoubt but merely information sufficient to support a reasonable belief that an offense has been oris being committed or that evidence of a crime may be found in a certain place" (People vBigelow, 66 NY2d 417, 423 [1985]; see People v McRay, 51 NY2d 594, 602[1980]). The relevant question is "not . . . defendant's guilt but . . . thesufficiency . . . of the grounds for the arresting officer's belief that the defendant wasguilty" (People v Shulman, 6 NY3d1, 26 [2005] [internal quotation marks, brackets and citation omitted]; see People v Green, 127 AD3d1473, 1473-1474 [2015], lv denied 27 NY3d 965 [2016]). Here, a witness identifieddefendant as one of the people who "robbed the Puerto Ricans of their electronics," and anofficer observed defendant with electronics at the bus station the morning after the robbery. Hornwas entitled to rely on the information received from a fellow officer with regard to the positiveidentification (see People v Maldonado, 86 NY2d 631, 635 [1995]). In our view, theevidence demonstrated that there was probable cause for defendant's arrest (see People v Zayas-Torres, 143 AD3d1176, 1179 [2016], lv denied 30 NY3d 984 [2017]) and no supplemental hearingwas required. We decline to consider defendant's argument that County Court (McKeighan, J.)was required to apply the Aguilar-Spinelli test to determine whether the witness wasreliable because it was not preserved for our review (see People v Wolfe, 103 AD3d 1031, 1034 [2013], lvdenied 21 NY3d 1021 [2013]) and, in any event, is without merit because the witness wasnot a confidential informant but a known member of the community (see People vZayas-Torres, 143 AD3d at 1179).
We turn next to defendant's arguments that the evidence was not legally sufficient to [*3]support a finding of guilt beyond a reasonable doubt and that thejury's verdict was against the weight of the evidence. "[T]he standard of review in determiningwhether the evidence before the jury was legally sufficient . . . is whether theevidence, viewed in the light most favorable to the People, could lead a rational trier of fact toconclude that the elements of the crime had been proven beyond a reasonable doubt" (Peoplev Cabey, 85 NY2d 417, 420 [1995]). When determining whether a verdict is against theweight of the evidence, we "first . . . determine whether an acquittal would not havebeen unreasonable. If so, [we] must weigh conflicting testimony, review any rational inferencesthat may be drawn from the evidence and evaluate the strength of such conclusions. Based on theweight of the credible evidence, [we] then decide[ ] whether the jury was justified in finding thedefendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 348 [2007]).
At trial, the jury heard testimony that Nichole Lussier, Jessica Lussier and Angela Lawrenceresided together and that all three were addicted to and selling crack cocaine for defendant.Defendant became angry because the women obtained drugs from another supplier, who wasresiding in a nearby hotel in the area, and together they devised a plan to rob the supplier.Specifically, Lawrence, defendant and three other men would go to the hotel, Lawrence wouldknock on the door under the guise of seeking more drugs and defendant and the other men wouldforcibly enter to steal drugs and money. In furtherance of this plan, Jessica Lussier provided a"pellet hand gun" that was "not capable of shooting and killing anybody" and a "little bat," madeof wood, known as a tire checker.
Brendaliz Febus testified that she, her father, her boyfriend, Xaymarie Rios and Rios' threechildren—a seven year old, a four year old and a nine month old—were residing intwo hotel rooms. On April 11, 2013, while Febus' father and her boyfriend were out oftown—leaving Febus, Rios and the two younger children in one of the two hotelrooms—there was a knock at the door and Febus opened it slightly to find Lawrence, whowas looking for one of the two men. Febus recalled seeing shadows, then three men outside withLawrence. When she tried to shut the door, the group pushed it back open and one of the men"put the gun in [her] face." Febus testified that a fourth man came into the room and that"somebody . . . had like a bat." Rios recalled four men in the room, that one man"had something like a bat" and that a man with a gun was "moving it" and telling Febus to shutup. Febus testified that she yelled at the men to leave, told them repeatedly that she did not haveany money or drugs and that she had to pull her shirt down to prove that she was not hidinganything. After staying for approximately 15 minutes, the men left, taking two video gamingsystems, some jewelry, cellular phones, four pieces of crack and a bag of change with them. Thegroup returned to the residence shared by the Lussiers and Lawrence, and the four men left afterfinding a taxicab to take them to the bus station in Albany. An investigator with the State Policetestified that he obtained a plastic "BB [or] pellet" gun and a "baton" from Lawrence'sresidence.
As relevant here, a person commits robbery in the first degree "when he [or she] forciblysteals property and when, in the course of the commission of the crime or of immediate flighttherefrom, he [or she] or another participant in the crime . . . [u]ses or threatens theimmediate use of a dangerous instrument" (Penal Law § 160.15 [3]), and a personcommits robbery in the second degree "when he [or she] forcibly steals property and when. . . [h]e [or she] is aided by another person actually present" (Penal Law§ 160.10 [1]). A person commits burglary in the second degree "when he [or she]knowingly enters or remains unlawfully in a building with intent to commit a crime therein, andwhen . . . [t]he building is a dwelling" (Penal Law § 140.25 [2]). Aperson commits petit larceny when he or she "steals property" (Penal Law§ 155.25). The crime of endangering the welfare of a child is supported with proofthat a person "knowingly act[ed] in a manner likely to be injurious to the physical, mental, ormoral welfare of a child less [*4]than [17 years of age]" (PenalLaw § 260.10 [1]).
Further, a "dangerous instrument" is "any instrument, article or substance . . .which, under the circumstances in which it is used, attempted to be used or threatened to be used,is readily capable of causing death or other serious physical injury" (Penal Law§ 10.00 [13]). A "serious physical injury" is a "physical injury which creates asubstantial risk of death . . . or serious and protracted disfigurement, protractedimpairment of health or protracted loss or impairment of the function of any bodily organ" (PenalLaw § 10.00 [10]). There is no "absolute definition of the term" dangerousinstrument, nor is there "a list of items which can be considered dangerous instruments"(People v Carter, 53 NY2d 113, 116 [1981]). Whether an item is a dangerous instrumentdepends on the way that it is used (see id.), and the item's capacity to cause seriousphysical injury must be proven, not inferred (see People v Hall, 18 NY3d 122, 129 [2011]).
The evidence in the record, viewed in the light most favorable to the People, was not legallysufficient to support the robbery in the first degree charge (count 1). Indisputably, the "gun" wasplastic and did not work, and there was no evidence that it could potentially harm someone(see People v Wilson, 252 AD2d 241, 249 [1998], lv denied 93 NY2d 859[1999]; compare People v Perez, 93AD3d 1032, 1035 [2012], lv denied 19 NY3d 1000 [2012]). Similarly, while therewas testimony that one of the men entering the motel room was holding the tire checker, therewas no evidence that any individual brandished the tire checker in a threatening manner (see People v Mason, 84 AD3d1502, 1503 [2011]). Here, as in People v Mason (supra), there is no questionthat one of the individuals possessed a dangerous instrument. What was missing was anyevidence that there was any verbal threat of immediate use of the instrument or that it was"employ[ed]" in any way (People v Pena, 50 NY2d 400, 407 n 2 [1980], certdenied 449 US 1087 [1981]; see People v Mason, 84 AD3d at 1503). Accordingly,count 1 of the indictment must be dismissed. We find that the verdict as to the remaining chargesis supported by legally sufficient evidence and, further, is in accord with the weight of theevidence.
We turn next to defendant's claim that County Court erred in denying trial counsel's motionto withdraw as counsel. In general, "[w]hether counsel is substituted is within the discretion andresponsibility of the trial judge" (Peoplev Porto, 16 NY3d 93, 99 [2010] [internal quotation marks and citation omitted]). Thetrial court has a duty to consider a motion to withdraw where there is a "seemingly seriousrequest"—that is—one based on "specific factual allegations of serious complaints"(id. at 99-100 [internal quotation marks and brackets omitted]). Although a requestshould "not be used merely to delay the orderly administration of justice," where there are suchallegations, the court may not summarily deny a request, but must instead make at least a"minimal inquiry" to determine whether there is good cause to substitute counsel (People vSides, 75 NY2d 822, 824-825 [1990]; see People v Gibson, 126 AD3d 1300, 1301-1302 [2015]). The"minimal inquiry" is necessary for the court to "discern meritorious complaints fromdisingenuous applications by inquiring as to the nature of the disagreement or its potential forresolution" (People v Porto, 16 NY3d at 100 [internal quotation marks and citationomitted]). "In determining whether good cause exists, a trial court must consider the timing ofthe defendant's request, its effect on the progress of the case and whether present counsel willlikely provide the defendant with meaningful assistance" (id. at 100 [internal quotationmarks and citation omitted]).
Defendant's trial counsel was assigned to represent defendant in June 2013. At an appearanceon October 18, 2013, County Court scheduled defendant's trial to begin on December 2, 2013. Bymotion dated November 13, 2013, trial counsel sought to withdraw because "the attorney/clientrelationship ha[d] continually deteriorated so as to fatally impact" his ability to representdefendant. In support of this claim, trial counsel complained that defendant (1) filed motionswithout notice to trial counsel at the same time that trial counsel was [*5]completing and filing pretrial motions on defendant's behalf, (2)refused to review the Huntley/Wade rulings, (3) refused to listen, shouted at trial counseland/or threatened to report "everybody" and replace him as counsel each time that he went to thecorrectional facility to discuss the case, and (4) filed a formal complaint against trial counsel. Insum, trial counsel explained that he was no longer able to "adequately and zealously represent"defendant's interests "due to the irretrievable breakdown in the attorney/client relationship." Inopposing the motion, the People encouraged the court to advise defendant that he is not allowedto select assigned counsel and that counsel decides on trial strategy. By written decision datedNovember 19, 2013, County Court denied the motion, pointing out that if the motion weregranted, the trial would not begin until "early next year." Further, the court reasoned that, in itsview, defendant's formal complaint was meritless, trial counsel's pretrial representation had been"effective[ ]" and defendant had made "many complaints" about all involved.
We find that, on this record, defendant's right to counsel was not adequately protected.County Court's determination focused on the inconveniences that would result if counsel weresubstituted and the trial were delayed one month, as well as defendant's propensity to complain.But it was trial counsel, not defendant, complaining that the relationship had broken down, andthe request was not made on the eve of trial. While we are not suggesting that a request made bycounsel warrants heightened inquiry, "a conflict of interest or other irreconcilable conflict withcounsel" may constitute good cause for substitution (People v Sides, 75 NY2d at 824; see People v Washington, 25 NY3d1091, 1095 [2015]; People vSmith, 18 NY3d 588, 592-593 [2012]), and there was no inquiry here to assess thegravity of counsel's concerns in this regard. The motion raised specific examples to support trialcounsel's claim that there was "an irretrievable breakdown" in the relationship with defendant. Assuch, the court should have first questioned both defendant and trial counsel about "the nature ofthe disagreement or its potential for resolution" prior to denying the motion (People vSides, 75 NY2d at 825; see People v Gibson, 126 AD3d at 1302). Absent such a"minimal inquiry," we are compelled to reverse the judgment of conviction (see People v Smith, 30 NY3d1043, 1044 [2017]; compare Peoplev Brown, 154 AD3d 1004, 1006 [2017]). Therefore, we remit this matter for theassignment of counsel and for further proceedings on the remaining counts of theindictment.
Defendant's remaining contentions are academic given our reversal of the judgment ofconviction.
McCarthy, J.P., Clark and Mulvey, JJ., concur.
Egan Jr., J. (concurring in part and dissenting in part). I agree with the majority that thePeople established sufficient probable cause for defendant's arrest, that there was legallysufficient evidence presented with regard to defendant's convictions for robbery in the seconddegree, burglary in the second degree, petit larceny and endangering the welfare of a child andthat County Court failed to adequately protect defendant's right to counsel such that reversal ofthe judgment of conviction and remittal for further proceedings is appropriate under thecircumstances. However, because I find that there was legally sufficient evidence presented fromwhich the jury could have concluded that the display of a tire checker or bat during thecommission of the subject robbery constituted the threatened use of a dangerous instrumentsufficient to support a conviction for robbery in the first degree, I respectfully dissent from thatpart of the majority decision dismissing count 1 of the indictment.
Contrary to the majority's holding, I do not believe that there is a strict requirement that [*6]a dangerous instrument, such as the tire checker or bat at issue(see Penal Law § 10.00 [13]; cf. People v Johnson, 63 AD3d 470, 470 [2009], lv denied13 NY3d 745 [2009]), needs to actually be brandished in a threatening manner, as opposed tobeing displayed, during the course of a robbery in order to support a conviction for robbery in thefirst degree (see People v Tejada,158 AD3d 443, 443 [2018] [robbery in the first degree conviction upheld where there wasno reasonable explanation for the defendant's display of a dangerous instrument during robberyother than an implied threat to use it]; People v Sharma, 112 AD3d 494, 495 [2013], lv denied 23NY3d 1025 [2014] [robbery in the first degree conviction upheld where the display of adangerous instrument, coupled with the surrounding circumstances, satisfied the threatened useelement of Penal Law § 160.15 (3)]; People v Boisseau, 33 AD3d 568, 568 [2006], lv denied 8NY3d 844 [2007] [robbery in the first degree conviction upheld where there was no innocentexplanation for the fact that the defendant displayed a dangerous instrument during a robbery]).The evidence at trial established that defendant, Angela Lawrence and three other men concocteda plan to force their way into the victims' hotel room for the purpose of robbing the occupantsthereof of any drugs and money contained therein. Lawrence testified that the group brought withthem a pellet gun and tire checker because "when the guys went in . . . they wantedsomething to be able to use force to take whatever [the victims] had." Lawrence's girlfriend,Jessica Lussier, who was present during the planning of the robbery, testified that the pellet gunand tire checker were brought along "[f]or protection . . . [; t]hey were going to robthem." Two of the victims inside the hotel room testified that they observed one of the intrudersholding a bat while demanding to know where the drugs and money were located (compare People v Mason, 84 AD3d1502, 1504 [2011] [wherein neither witness actually observed the defendant in possession ofa dangerous instrument]). This was no social call—it was an armed, forced entry into ahotel room in the nighttime. It is my view that the jury, having viewed the tire checker inevidence and considered the testimony as to why it was brought along, was presented with legallysufficient evidence from which it could conclude that defendant was armed with and threatenedthe use of a dangerous instrument (see Penal Law § 160.15 [3]; People vTejada, 158 AD3d at 443; People v Sharma, 112 AD3d at 495; People vBoisseau, 33 AD3d at 568; People v Thompson, 273 AD2d 153, 153 [2000], lvdenied 95 NY2d 908 [2000]; People v Marcano, 248 AD2d 157, 158 [1998], lvdenied 91 NY2d 1009 [1998]).
Ordered that the judgment is reversed, on the law, count 1 of the indictment dismissed, andmatter remitted to the County Court of Washington County for further proceedings notinconsistent with this Court's decision.