Opinion
09-29-2017
The PEOPLE of the State of New York, Respondent, v. Arthur HAILEY, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant. Arthur Hailey, Defendant–Appellant Pro Se. John J. Flynn, District Attorney, Buffalo (Julie Bender Fiske of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant.
Arthur Hailey, Defendant–Appellant Pro Se.
John J. Flynn, District Attorney, Buffalo (Julie Bender Fiske of Counsel), for Respondent.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him following a nonjury trial of 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 the victim's cab, demanded that the victim "give it up" and stated that he had a gun to the victim's head. The victim then felt a "metal object" on the back of his head. The victim subsequently drove his cab to a convenience store for purposes of withdrawing money from an automated teller machine. While entering the store together, defendant reminded the victim that he had a gun and directed the victim to avoid drawing attention to them.
Based on the above testimony, we reject defendant's contention that the conviction is not supported by legally sufficient evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). The evidence is legally sufficient to establish that defendant displayed what appeared to the victim to be a firearm (see Penal Law § 160.10[2][b] ; People v. Howard, 92 A.D.3d 176, 179–180, 939 N.Y.S.2d 4, affd. 22 N.Y.3d 388, 981 N.Y.S.2d 310, 4 N.E.3d 320 ; People v. Groves, 282 A.D.2d 278, 278, 725 N.Y.S.2d 296, lv. denied 96 N.Y.2d 901, 730 N.Y.S.2d 799, 756 N.E.2d 87 ; People v. Jackson, 180 A.D.2d 756, 756–757, 580 N.Y.S.2d 392, lv. denied 80 N.Y.2d 832, 587 N.Y.S.2d 917, 600 N.E.2d 644 ), and that defendant came " ‘dangerously near’ " to forcibly depriving the victim of property ( People v. Naradzay, 11 N.Y.3d 460, 466, 872 N.Y.S.2d 373, 900 N.E.2d 924 ; see People v. Lamont, 25 N.Y.3d 315, 319, 12 N.Y.S.3d 6, 33 N.E.3d 1275 ; People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094, rearg. denied 41 N.Y.2d 1010, 395 N.Y.S.2d 1027, 363 N.E.2d 1194 ). Defendant's intent to rob the victim could reasonably be inferred from defendant's conduct and the surrounding circumstances (see Lamont, 25 N.Y.3d at 319, 12 N.Y.S.3d 6, 33 N.E.3d 1275 ; Bracey, 41 N.Y.2d at 301–302, 392 N.Y.S.2d 412, 360 N.E.2d 1094 ; People v. Gordon, 119 A.D.3d 1284, 1286, 990 N.Y.S.2d 728, lv. denied 24 N.Y.3d 1002, 997 N.Y.S.2d 120, 21 N.E.3d 572 ). Viewing the evidence in light of the elements of the crime of attempted robbery in the second degree in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we reject defendant's contention that the verdict is against the weight of the evidence with respect to that crime (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). We see no basis to disturb Supreme Court's credibility determinations (see generally id. ).
We reject defendant's further contention that the court erred in refusing to suppress the statements he made to the police while seated in the back of a patrol car, before he was advised of his Miranda rights. It is well settled that "both the elements of police ‘custody’ and police ‘interrogation’ must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda " ( People v. Huffman, 41 N.Y.2d 29, 33, 390 N.Y.S.2d 843, 359 N.E.2d 353 ; see People
v. Spirles, 136 A.D.3d 1315, 1316, 25 N.Y.S.3d 462, lv. denied 27 N.Y.3d 1007, 38 N.Y.S.3d 116, 59 N.E.3d 1228, cert. denied – –– U.S. ––––, 137 S.Ct. 298, 196 L.Ed.2d 220 ). Here, defendant's statements were not the product of police interrogation inasmuch as the officer asked defendant only preliminary questions that "were investigatory and not accusatory" ( People v. Parulski, 277 A.D.2d 907, 908, 716 N.Y.S.2d 260 ; see Spirles, 136 A.D.3d at 1316, 25 N.Y.S.3d 462; People v. Brown, 23 A.D.3d 1090, 1092, 804 N.Y.S.2d 209, lv. denied 6 N.Y.3d 810, 812 N.Y.S.2d 449, 845 N.E.2d 1280 ).
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., that defense counsel failed to utilize certain exculpatory evidence, is based on matters outside the record on appeal and thus must be raised by way of a motion pursuant to CPL article 440 (see People v. Johnson, 81 A.D.3d 1428, 1428, 917 N.Y.S.2d 487, lv. denied 16 N.Y.3d 896, 926 N.Y.S.2d 31, 949 N.E.2d 979 ; People v. Wilson, 49 A.D.3d 1224, 1225, 853 N.Y.S.2d 773, lv. denied 10 N.Y.3d 966, 863 N.Y.S.2d 150, 893 N.E.2d 456 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.