People v. Butler

• Decision Date: 22 February 1994
• Citation: 201 A.D.2d 662,608 N.Y.S.2d 263
• Parties: The PEOPLE, etc., Respondent, v. Kevin BUTLER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 263

608 N.Y.S.2d 263

201 A.D.2d 662

The PEOPLE, etc., Respondent, v. Kevin BUTLER, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 22, 1994.

McKenna & Schneier, Valley Stream (Alan Schneier, of counsel), for appellant.

Denis Dillon, Dist. Atty., Mineola (Bruce E. Whitney and Margaret E. Mainusch, of counsel), for respondent.

Before BALLETTA, J.P., and SANTUCCI, KRAUSMAN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Nassau County (Orenstein, J.), rendered June 25, 1992, convicting him of murder in the second degree (two counts) and attempted robbery in the first degree (six counts), upon a jury verdict, and imposing sentence. This appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement authorities.

ORDERED that the judgment is affirmed.

On the evening of December 6, 1990, the defendant and four accomplices ambushed two men in the stairwell of an apartment building in order to take their shearling coats. During the attempted robbery, one of the defendant's accomplices fatally shot one of the victims. The other victim escaped and subsequently testified against the perpetrators.

The record supports the hearing court's conclusion that the defendant waived his constitutional rights after they were administered to him from a card (see, People v. Gonzalez, 55 N.Y.2d 720, 447 N.Y.S.2d 145, 431 N.E.2d 630, cert. denied, 456 U.S. 1010, 102 S.Ct. 2304, 73 L.Ed.2d 1306; People v. Harris, 137 A.D.2d 619, 524 N.Y.S.2d 506). None of the defendant's contentions warrant a finding that his statements were made as a result of false promises of favorable treatment (see, People v. Sumeriski, 119 A.D.2d 999, 500 N.Y.S.2d 900), and any deception by the police was not so fundamentally unfair as to have denied the defendant due process (see, People v. Tarsia, 50 N.Y.2d 1, 427 N.Y.S.2d 944, 405 N.E.2d 188; People v. Hassell, 180 A.D.2d 819, 820, 580 N.Y.S.2d 773).

The hearing court properly found that the police had probable cause to arrest the defendant based upon the statements of the surviving victim and one of the defendant's accomplices, both of whom named him as a perpetrator (see, People v. Berzups, 49 N.Y.2d 417, 426 N.Y.S.2d 253, 402 N.E.2d 1155; People v. Burton, 194 A.D.2d 683, 599 N.Y.S.2d 108; People v. Pagan, 184 A.D.2d 738, 585 N.Y.S.2d 453; People v. Scherifi, 147 A.D.2d 663, 664, 538 N.Y.S.2d 64).

Viewing the evidence in the light most favorable to the defendant, he failed to show by a preponderance of the evidence that he had no reasonable grounds to believe that his accomplices were armed. Therefore, the trial court did not err when it denied his request for a charge pursuant to Penal Law § 125.25(3) (see, People v. Simmons, 143 ...