Opinion
344 KA 19-00666
06-11-2021
The PEOPLE of the State of New York, Respondent, v. Tajenee JOHNSON, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, after a nonjury trial, of burglary in the second degree ( Penal Law § 140.25 [2] ), robbery in the second degree (§ 160.10 [2] [b]), and attempted robbery in the third degree (§§ 110.00, 160.05). We affirm.
Contrary to defendant's contention, Supreme Court did not err in refusing to suppress defendant's statements to the police. The court properly determined that he voluntarily waived his Miranda rights before making the statements (see People v. Huff , 133 A.D.3d 1223, 1224, 19 N.Y.S.3d 378 [2015], lv denied 27 N.Y.3d 999, 38 N.Y.S.3d 109, 59 N.E.3d 1221 [2016] ). Furthermore, the People met their initial burden at the Huntley hearing of establishing that defendant's statements were not the product of improper police conduct (cf. People v. Guilford , 21 N.Y.3d 205, 212, 969 N.Y.S.2d 430, 991 N.E.2d 204 [2013] ), "and ‘[d]efendant presented no bona fide factual predicate in support of his conclusory speculation that his statement[s were] coerced’ " ( People v. Wilson , 120 A.D.3d 1531, 1533, 993 N.Y.S.2d 200 [4th Dept. 2014], affd 28 N.Y.3d 67, 41 N.Y.S.3d 466, 64 N.E.3d 286 [2016], rearg denied 28 N.Y.3d 1158, 49 N.Y.S.3d 87, 71 N.E.3d 579 [2017] ). In any event, any error in admitting the statements in evidence is harmless beyond a reasonable doubt (see People v. McDonald , 173 A.D.3d 1633, 1635, 102 N.Y.S.3d 368 [4th Dept. 2019], lv denied 34 N.Y.3d 934, 109 N.Y.S.3d 709, 133 N.E.3d 410 [2019] ; see generally People v. Crimmins , 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
Viewing the evidence in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the conviction is 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 [1987] ). Contrary to defendant's contention that the pipe that he displayed did not sufficiently resemble a rifle or shotgun to satisfy that element of the crime of robbery in the second degree as defined in Penal Law § 160.10 (2) (b), " ‘the object displayed need not closely resemble a firearm or bear a distinctive shape’ " ( People v. Smith , 29 N.Y.3d 91, 100, 52 N.Y.S.3d 692, 75 N.E.3d 84 [2017] ), and thus a "towel wrapped around a black object ..., a toothbrush held in a pocket ... or even a hand consciously concealed in clothing may suffice ... if under all the circumstances the defendant's conduct could reasonably lead the victim to believe that a gun is being used during the robbery" ( People v. Lopez , 73 N.Y.2d 214, 220, 538 N.Y.S.2d 788, 535 N.E.2d 1328 [1989] ). Here, we conclude that defendant's display of a pipe wrapped in a towel, under circumstances including the manner in which it was brandished and the threats he made while holding it, is sufficient to establish that he displayed what appeared to be a rifle, shotgun, or other long gun (see generally People v. Akinlawon , 158 A.D.3d 1245, 1246, 71 N.Y.S.3d 300 [4th Dept. 2018], lv denied 31 NY3d 1114, 1119, 81 N.Y.S.3d 374, 379, 106 N.E.3d 757, 762 [2018]). Contrary to defendant's further contention, the evidence is sufficient to permit the inference that defendant had the requisite intent to steal property (see generally People v. Gordon , 23 N.Y.3d 643, 649-650, 992 N.Y.S.2d 700, 16 N.E.3d 1178 [2014] ), which is an element of all three crimes of which defendant was convicted. In addition, with respect to the count of burglary in the second degree, the evidence is sufficient to permit the court to conclude "that defendant possessed the requisite intent to commit [larceny] when he unlawfully entered the building" ( People v. Hymes , 132 A.D.3d 1411, 1412, 17 N.Y.S.3d 561 [4th Dept. 2015], lv denied 26 N.Y.3d 1146, 32 N.Y.S.3d 60, 51 N.E.3d 571 [2016] ). Contrary to defendant's additional contention, we conclude with respect to the count of attempted robbery in the third degree that "the People presented evidence from which defendant's threatened use of force could be implied" ( People v. Parris , 74 A.D.3d 1862, 1863, 903 N.Y.S.2d 925 [4th Dept. 2010], lv denied 15 N.Y.3d 854, 909 N.Y.S.2d 32, 935 N.E.2d 824 [2010] [internal quotation marks omitted]). Furthermore, viewing the evidence in light of the elements of the crimes 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 [2007] ), the verdict is not against the weight of the evidence with respect to all of the crimes of which defendant was convicted (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
The sentence is not unduly harsh or severe. We note that the certificate of conviction incorrectly states that defendant was convicted upon a guilty plea, rather than upon a nonjury verdict. The certificate of conviction must therefore be amended to correct that clerical error (see People v. Brooks , 183 A.D.3d 1231, 1233, 123 N.Y.S.3d 358 [4th Dept. 2020], lv denied 35 N.Y.3d 1043, 127 N.Y.S.3d 848, 151 N.E.3d 529 [2020] ; People v. Simpson , 173 A.D.3d 1617, 1621, 102 N.Y.S.3d 357 [4th Dept. 2019], lv denied 34 N.Y.3d 954, 110 N.Y.S.3d 631, 134 N.E.3d 630 [2019] ).