People v. Collier

• Citation: 146 A.D.3d 1146,46 N.Y.S.3d 276,2017 N.Y. Slip Op. 00342
• Parties: The PEOPLE of the State of New York, Respondent, v. Rahcief COLLIER, Appellant.
• Decision Date: 19 January 2017
• Court: New York Supreme Court — Appellate Division

146 A.D.3d 1146

46 N.Y.S.3d 276

2017 N.Y. Slip Op. 00342

The PEOPLE of the State of New York, Respondent,

v.Rahcief COLLIER, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 19, 2017.

Kathryn S. Dell, Troy, for appellant, and appellant pro se.

Joel E. Abelove, District Attorney, Troy (Vincent J. O'Neill of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., LYNCH, CLARK and AARONS, JJ.

CLARK, J.

Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.), rendered December 6, 2012, upon a verdict convicting defendant of the crimes of assault in the first degree, robbery in the first degree (four counts), attempted robbery in the first degree (two counts), criminal use of a firearm in the first degree and criminal use of a firearm in the second degree.

On October 3, 2011, defendant, along with his accomplice, devised a plan to rob the male victim, who he lured to a specified location under the pretext that he wished to purchase drugs. The male victim arrived at the prearranged location with the female victim and, as defendant and his accomplice attempted to carry out the plan, the male victim was shot in the arm by a sawed-off shotgun directed at him by defendant. Defendant was subsequently indicted on the charges of attempted murder in the second degree, assault in the first degree, robbery in the first degree (four counts), attempted robbery in the first degree (two counts), criminal use of a firearm in the first degree, criminal use of a firearm in the second degree and the manufacture, transport, disposition and defacement of weapons and dangerous instruments and appliances. The matter proceeded to a jury trial and, upon defendant's motion for a trial order of dismissal at the close of proof, County Court dismissed the charge of manufacture, transport, disposition and defacement of weapons and dangerous instruments and appliances. The case was thereafter submitted to the jury, which ultimately returned a verdict acquitting defendant of attempted murder in the second degree, but finding him guilty of the remaining charges. Defendant was sentenced to an aggregate prison term of 20 years, followed by five years of postrelease supervision. Defendant appeals, and we affirm.

Initially, defendant argues that the police lacked probable cause to arrest him and, thus, that his statements to police should have been suppressed. While defendant made a general, pretrial request for a Dunaway hearing, only a combined Huntley/Wade hearing was held and it is unclear from the record whether defendant withdrew his request for a Dunaway hearing or whether that branch of his omnibus motion was overlooked by County Court. Nevertheless, by either failing to pursue his application for a Dunaway hearing or alert the court that it had overlooked his request, defendant abandoned such request, thereby rendering unpreserved his appellate contention that the police lacked probable cause to arrest him (see CPL 470.05[2] ; People v. Bigelow, 68 A.D.3d 1127, 1128, 892 N.Y.S.2d 449 [2009], lv. denied 14 N.Y.3d 797, 899 N.Y.S.2d 131, 925 N.E.2d 935 [2010] ; People v. Harley, 253 A.D.2d 699, 699, 679 N.Y.S.2d 99 [1998], lv. denied 92 N.Y.2d 1032, 684 N.Y.S.2d 497, 707 N.E.2d 452 [1998] ), and we decline to take corrective action in the interest of justice.

Defendant also argues that his convictions are not supported by legally sufficient evidence and are against the weight of the evidence. However, defendant preserved his legal sufficiency argument only with respect to his convictions for attempted robbery in the first degree, as he failed to raise—in his motion for a trial order of dismissal at the close of proof—any protests "specifically directed" at the proof supporting his other convictions (People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; see People v. Keschner, 25 N.Y.3d 704, 721, 16 N.Y.S.3d 187, 37 N.E.3d 690 [2015] ). Nevertheless, we must, as part of our weight of the evidence review, evaluate whether the elements of each crime were proven beyond a reasonable doubt (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Hamilton, 133 A.D.3d 1090, 1091, 20 N.Y.S.3d 676 [2015] ). In that regard, where, as here, a different verdict would not have been unreasonable, we, "like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal quotation marks and citations omitted]; see People v. Thiel, 134 A.D.3d 1237, 1238, 21 N.Y.S.3d 745 [2015], lv. denied 27 N.Y.3d 1156, 39 N.Y.S.3d 389, 62 N.E.3d 129 [2016] ).

As pertinent here, a person is guilty of robbery in the first degree when he or she "forcibly steals property and when, in the course of the commission of the crime ..., he [or she] ... [c]auses serious physical injury to any person who is not a participant in the crime[ ] or ... [i]s armed with a deadly weapon" (Penal Law § 160.15[1], [2] ). Additionally, a person is guilty of attempted robbery in the first degree when, with intent to forcibly steal property, he or she engages in conduct which tends to do so, and when, in the course of the attempted commission of the crime, he or she causes serious physical injury to a nonparticipant in the crime or is armed with a deadly weapon (see Penal Law §§ 110.00 ; 160.15[1], [2]; People v. Knox, 137 A.D.3d 1330, 1330–1331, 25 N.Y.S.3d 751 [2016], lv. denied 27 N.Y.3d 1070, 38 N.Y.S.3d 841, 60 N.E.3d 1207 [2016] ). Further, a person is guilty of assault in the first degree when, "[w]ith intent to cause serious physical injury to another person, he [or she] causes such injury to such person ... by means of a deadly weapon or a dangerous instrument" (Penal Law § 120.10 [1] ). Finally, a person is guilty of criminal use of a firearm in the first degree and criminal use of a firearm in second degree when he or she commits class B and C violent felony offenses (see Penal Law § 70.02[1][a], [b] ) and possesses a loaded, deadly weapon from which a shot "readily capable of producing death or other serious injury may be discharged" (Penal Law §§ 265.08[1] ; 265.09[1][a] ).

Here, the trial evidence established that, on the evening in question, defendant and his accomplice formulated a plan to rob the male victim, who defendant admitted in a statement to police he knew to sell drugs and carry cash. In his written statement to police, which was admitted into evidence,¹ defendant stated that the male victim had "disrespected" him the night before and that he arranged the meeting so that he and his accomplice could rob the male victim. Defendant stated that, after obtaining a gun with a "sawed[-]off" barrel, he approached the victims' vehicle and pointed the gun at the male victim, while his accomplice pulled the female victim out of the vehicle, entered the vehicle, began going through the male victim's pockets and asked the male victim, "Where's the money at?" Defendant asserted that his accomplice and the male victim were "tusslin[g]" inside the vehicle, while he hit the male victim with the wooden part of his gun. Defendant stated that the male victim grabbed the gun, and he "stepped back[,] ... gave the gun a yank and the gun went off."

Defendant's statements to police were sufficiently corroborated by the testimony of both victims, as well as the responding police officers (see CPL 60.50 ). The male victim testified that, after defendant contacted him to buy drugs, he and the female victim arrived at the prearranged location and were thereafter approached on opposite sides of the vehicle by defendant and his accomplice. He asserted that defendant approached the driver side of the vehicle—where he was seated—with what appeared to be a "cut [-]down" shotgun, placed the gun roughly six inches from his head and demanded that he give defendant "everything." Both victims testified that defendant's accomplice forcibly pulled the female victim from the passenger side of the vehicle. The male victim stated that defendant's accomplice thereafter leaned inside the vehicle, started grabbing at his possessions, including his cell phone, "money in [his] sweatshirt pocket" and his keys, and successfully pulled his house key and key chain from the set of keys in the ignition. The male victim further testified that defendant hit him in the head with the gun as he was trying to defend himself and that, as he had his "hand about in front of his face and his elbow bent pointing up," he was shot. As established by physician testimony, three surgeries were required to address the male victim's gunshot wound, the first of which repaired life-threatening damage to his arteries and nerves.

The female victim consistently testified that defendant and his accomplice approached the vehicle on both sides and were yelling "[g]ive me your stuff." She stated that defendant's accomplice "grabbed" her out of the car and took her cell phone, at which point she ran and hid. She testified that she heard a gunshot and witnessed the male victim bleeding from his arm. A responding police officer testified that he heard "a loud bang," came upon the male victim bleeding profusely from his arm and observed a set of keys several yards from the crime scene. Another responding police officer testified that he observed damage to and blood on the vehicle.

Defendant argues that his convictions of attempted robbery in the first degree were not supported by legally sufficient evidence because the proof failed to establish that either he or his accomplice came close to forcibly stealing cash from the victims. We disagree. By all accounts, including defendant's own statements to police, defendant and his accomplice demanded that the male victim turn over his money. While the male victim testified that he had over $4,200 in cash locked in...