Opinion
06-09-2017
The PEOPLE of the State of New York, Respondent, v. Ronald HOUGH, Jr., Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant. Ronald Hough, Jr., 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 (Barbara J. Davies of Counsel), for Defendant–Appellant.
Ronald Hough, Jr., Defendant–Appellant Pro Se.
John J. Flynn, District Attorney, Buffalo (Julie Bender Fiske of Counsel), for Respondent.
PRESENT: WHALEN, P.J., LINDLEY, DeJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon a jury verdict, of robbery in the first degree ( Penal Law § 160.15[2] ), attempted murder in the first degree (§§ 110.00, 125.27[1][a][vii], [b] ), and criminal possession of a weapon in the second degree (§ 265.03[3] ). In his main and pro se supplemental briefs, defendant contends that his conviction should be reversed inasmuch as County Court erred in denying suppression of his statements to the police, relief that defendant had sought on the ground that he was detained without reasonable suspicion and questioned without the benefit of Miranda warnings. We reject that contention. Based on the evidence adduced at the suppression hearing, we conclude that the court properly found that the stop and brief detention of defendant was, from its outset, a level three encounter under De Bour (see People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; see also People v. Martinez, 80 N.Y.2d 444, 448, 591 N.Y.S.2d 823, 606 N.E.2d 951 ; People v. Hicks, 68 N.Y.2d 234, 238, 508 N.Y.S.2d 163, 500 N.E.2d 861 ). The court properly determined that the police officers' detection of the odor of burning marihuana emanating from the vicinity of defendant and his walking companion supplied the officers with reasonable suspicion of criminal activity sufficient to warrant stopping both men (see People v. Norman, 142 A.D.3d 1107, 1108, 37 N.Y.S.3d 582, lv. denied 28 N.Y.3d 1148, 52 N.Y.S.3d 300, 74 N.E.3d 685 ; People v. Lightfoot, 124 A.D.3d 802, 803, 1 N.Y.S.3d 358, lv. denied 25 N.Y.3d 990, 10 N.Y.S.3d 533, 32 N.E.3d 970 ; cf. People v. Walker, 128 A.D.3d 1499, 1500, 8 N.Y.S.3d 826, lv. denied 26 N.Y.3d 936, 17 N.Y.S.3d 99, 38 N.E.3d 845 ). Moreover, the officers' level of suspicion was increased when defendant's companion immediately fled and, during the ensuing chase, displayed and discarded a handgun, which was promptly recovered by the officers. The evidence at the suppression hearing established that only at that point was defendant, who had been placed unhandcuffed in the rear of a patrol vehicle after the gun was sighted, briefly questioned before being released.
Moreover, the court properly determined that, to the extent that defendant may have been subjected 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 were not preceded by Miranda warnings (see People v. Rodney, 85 N.Y.2d 289, 293, 624 N.Y.S.2d 95, 648 N.E.2d 471 ; People v. Carrasquillo, 50 A.D.3d 1547, 1548, 856 N.Y.S.2d 425, lv. denied 11 N.Y.3d 735, 864 N.Y.S.2d 393, 894 N.E.2d 657 ). To the extent that defendant may have been subjected to custodial interrogation, meaning questioning or its functional equivalent intended to elicit an incriminating response (see generally Rhode Island v. Innis, 446 U.S. 291, 300–301, 100 S.Ct. 1682, 64 L.Ed.2d 297 ; People v. Ferro, 63 N.Y.2d 316, 321–323, 482 N.Y.S.2d 237, 472 N.E.2d 13, cert. denied 472 U.S. 1007, 105 S.Ct. 2700, 86 L.Ed.2d 717 ), we conclude that the impact of defendant's unwarned answer to such questioning, i.e., that he did not know his gun-discarding companion, was of minimal impact in demonstrating defendant's guilt of the charged crimes. We therefore further conclude that any error on the part of the court in refusing to suppress that single nonpedigree statement of defendant is harmless beyond a reasonable doubt (see People v. Dean, 145 A.D.3d 1633, 1633, 44 N.Y.S.3d 663 ; see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).
We conclude that defendant's challenge to the sufficiency of the evidence with respect to his intent to kill the victim is unpreserved for our review (see People v. Tyler, 43 A.D.3d 633, 633, 841 N.Y.S.2d 193, lv. denied 9 N.Y.3d 1010, 850 N.Y.S.2d 398, 880 N.E.2d 884 ; see also People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ) and, in any event, it is 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 A.D.3d 1621, 1622, 946 N.Y.S.2d 780, lv. denied 19 N.Y.3d 998, 951 N.Y.S.2d 474, 975 N.E.2d 920 [internal quotation marks omitted] ), and that a " ‘jury is entitled to infer that a defendant intended the natural and probable consequences of his acts' " ( People v. Schumaker, 136 A.D.3d 1369, 1370, 25 N.Y.S.3d 487, lv. denied 27 N.Y.3d 1075, 38 N.Y.S.3d 845, 60 N.E.3d 1211, reconsideration denied 28 N.Y.3d 974, 43 N.Y.S.3d 261, 66 N.E.3d 7 ; see People v. Bueno, 18 N.Y.3d 160, 169, 936 N.Y.S.2d 636, 960 N.E.2d 405 ; People v. Brown, 120 A.D.3d 954, 955–956, 990 N.Y.S.2d 755, lv. denied 24 N.Y.3d 1118, 3 N.Y.S.3d 760, 27 N.E.3d 474 ). Further, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence with respect to the issue whether defendant possessed the intent to kill (see Schumaker, 136 A.D.3d at 1371, 25 N.Y.S.3d 487; Brown, 120 A.D.3d at 955–956, 990 N.Y.S.2d 755 ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
We further conclude that the testimony of the accomplice was sufficiently corroborated (see People v. Davis, 28 N.Y.3d 294, 302–303, 44 N.Y.S.3d 358, 66 N.E.3d 1076 ; People v. Hilkert, 145 A.D.3d 1609, 1609–1610, 42 N.Y.S.3d 901, lv. denied 29 N.Y.3d 949, 54 N.Y.S.3d 380, 76 N.E.3d 1083 ; see generally People v. Reome, 15 N.Y.3d 188, 191–192, 906 N.Y.S.2d 788, 933 N.E.2d 186 ; People v. Breland, 83 N.Y.2d 286, 292–294, 609 N.Y.S.2d 571, 631 N.E.2d 577 ), and we likewise conclude that the jury did not fail to give that testimony the weight it should be accorded on the issue of defendant's identity as the robber and shooter (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
We have considered defendant's remaining contentions raised in his pro se supplemental brief, and we conclude that they are without merit. Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.