People v. Curry

• Decision Date: 02 May 2002
• Docket Number: 3,11111
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v SHYMEL CURRY, Appellant. 11111 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT Calendar Date:
• Court: New York Supreme Court — Appellate Division

THE PEOPLE OF THE STATE OF NEW YORK, Respondent v SHYMEL CURRY, Appellant

11111

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

Calendar Date: March 27, 2002

Decided and Entered: May 2, 2002

Eugene P. Devine, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.

Paul A. Clyne, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.

MEMORANDUM AND ORDER

Before: Cardona, P.J., Mercure, Carpinello, Mugglin and Rose, JJ.

Mugglin, J.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered January 5, 1999, upon a verdict convicting defendant of the crimes of murder in the second degree (two counts), attempted robbery in the first degree (two counts) and attempted robbery in the second degree (two counts).

Based on testimony that he was present at the scene and participated in attempts to rob two young victims who were shot and killed by one of his companions, defendant was convicted after a jury trial of two counts of murder in the second degree (felony murder) and two counts each of attempted robbery in the first and second degrees. Defendant was sentenced to consecutive indeterminate terms of imprisonment of 25 years to life on each of the felony murder convictions, an indeterminate term of 7 to 15 years on each of the first degree attempted robbery convictions, and indeterminate terms of 3 to 7 years on each of the second degree attempted robbery convictions. Defendant appeals.

Initially, we find no merit to defendant's contention that the convictions are against the weight of the evidence because the People failed to prove beyond a reasonable doubt that he had the requisite intent to commit any of these crimes. Since our review of the record suggests that a contrary result would not have been unreasonable, we are required to "'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, quoting People ex rel. MacCracken v Miller, 291 NY 55, 62; see, People v Rayam, 94 N.Y.2d 557, 560; People v Krug, 282 A.D.2d 874, 878). Here, the conflict occurs by comparing the trial testimony of Aaron Bebo, a participant in the crimes who testified for the prosecution as a condition of a plea bargain, with defendant's version of the events, as contained in his statement to the police and his sworn Grand Jury testimony, both of which were admitted into evidence. Bebo's testimony was that defendant was a knowing, voluntary and intentional participant, while defendant said that he had no direct participation in the robbery, claiming instead that he left the scene as it commenced, having unsuccessfully attempted to convince his companions to abandon the robbery plan. Bearing in mind that great deference is accorded to the credibility determinations made by the trier of the facts (see, People v Hodge, 290 A.D.2d 382, ___, 735 N.Y.S.2d 261, 262), we conclude that the probative force of the conflicting testimony demonstrates the presence of the requisite intent under each charge. A murder committed during the commission of a designated felony does not require proof of intent to commit the murder. The intent necessary to sustain such conviction arises from that necessary to commit the underlying felony (see, People v Stokes, 88 N.Y.2d 618, 623). Thus, in order to sustain each of the convictions, the evidence must establish, beyond a reasonable doubt, that defendant committed or attempted to commit a robbery together with proof that the death of a nonparticipant occurred during the robbery (see, Penal Law § 125.25 [3]).

Here, the jury clearly accepted the prosecution's evidence that defendant agreed with the other participants to go to the City of Albany to rob people and that, although defendant did not commit the murders, they occurred during his participation in the attempted robbery of the two victims. In this regard, our review of the record reveals no basis upon which to reject the jury's decision to accept the prosecution's evidence on this issue and to reject defendant's version of the incident. Bebo's testimony was neither patently incredible nor unworthy of belief as a matter of law (see, People v Stokes, 290 A.D.2d 71, ___, 736 N.Y.S.2d 781, 783; People v Mann, 216 A.D.2d 796, 798, lv denied 86 N.Y.2d 797). Since it appears that the jury gave the evidence the weight it should be accorded, we reject defendant's contention (see, People v Ward, 282 A.D.2d 819, 820, lv denied 96 N.Y.2d 942).

Next, defendant asserts that the statements given to the police should have been suppressed as his warrantless arrest was made without probable cause. In order to effectuate such an arrest, a police officer must have reasonable cause to believe that the person has committed a crime (see, CPL 140.10 [1] [b]). "'Reasonable cause means probable cause * * * [and] exists when an officer has knowledge of facts and circumstances sufficient to support a reasonable belief that an offense has been or is being committed'" (People v Maldonado, 86 N.Y.2d 631, 635, quoting People v Bigelow, 66 N.Y.2d 417, 423 [citation omitted]; accord, People v Chaney, 253 A.D.2d 562, 565). Prior to taking defendant into custody at his girlfriend's apartment in the City of Troy, Rensselaer County, the police obviously knew that two homicides had been committed. They were also aware that an individual had been observed running from the scene of the crimes and entering a red Oldsmobile Achieva bearing a Pennsylvania license plate, which vehicle had been rented to Nadine Thomas. The police interview of Thomas revealed that she had loaned the vehicle to her nephew, defendant. Additionally, Thomas informed the police that defendant had telephoned her son (at a time after the murders) and instructed him to report that the car had been stolen. Further, the police were cognizant of the fact that defendant and Bebo hailed a cab four blocks from the scene of the murders and proceeded to Troy. The taxi driver informed the police that his fares seemed nervous and agitated and identified defendant as an individual who stated during the taxicab ride "that s**t made me sick" to which the other fare responded "shut the f**k up". In addition, the police knew of the flight of the individuals in possession of the vehicle loaned to defendant and that a weapon was found in close proximity to the scene of the crime. Considered in the aggregate, it becomes clear that, although these facts are not sufficient by themselves to warrant a conviction beyond a reasonable doubt, they convincingly establish probable...