People v. Matthews

• Decision Date: 08 March 2018
• Docket Number: 106445
• Citation: 72 N.Y.S.3d 230,159 A.D.3d 1111
• Parties: The PEOPLE of the State of New York, Respondent, v. Tyshen MATTHEWS, Also Known as Tysheen Moore, Also Known as Nitty, Appellant.
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 1111

72 N.Y.S.3d 230

The PEOPLE of the State of New York, Respondent,

v.Tyshen MATTHEWS, Also Known as Tysheen Moore, Also Known as Nitty, Appellant.

106445

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

Calendar Date: January 9, 2017

Decided and Entered: March 8, 2018

Thomas F. Garner, Middleburgh, for appellant.

Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), for respondent.

Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Mulvey, JJ.

MEMORANDUM AND ORDER

Lynch, J.Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered January 3, 2014, upon a verdict convicting defendant of the crimes of robbery in the first degree, robbery in the second degree, burglary in the second degree, petit larceny and endangering the welfare of a child.

Defendant, who resided in New York City, sold drugs to three women who resided in the Town of Whitehall, Washington County. When these women began to purchase drugs from another individual, defendant and three codefendants devised a plan to rob the competing drug dealer, who was living at a hotel located in the Town of Hampton, Washington County. During the robbery, various electronics and crack cocaine were stolen. After the robbery, defendant and the codefendants took a taxicab to the bus station in the City of Albany.

During the ensuing investigation, a witness identified defendant as being involved, and defendant was arrested and charged with robbery in the first degree, robbery in the second degree, burglary in the second degree, petit larceny, conspiracy in the fourth degree and endangering the welfare of a child. Defendant made a pretrial motion to, among other things, challenge the probable cause for his arrest. County Court held a Wade/Huntley hearing, but did not render a decision on this issue. After a jury trial, defendant was convicted of all of the charges except for conspiracy in the fourth degree. He was sentenced to an aggregate prison term of 20 years to be followed by five years of postrelease supervision. Defendant appealed, and this Court withheld decision and, as relevant here, remitted the matter for a ruling on defendant's probable cause challenge ( 147 A.D.3d 1206, 1207, 47 N.Y.S.3d 498 [2017] ). Upon remittal, County Court (Michelini, J.) reviewed the transcript of the prior Wade/Huntley hearing and found, among other things, that there was probable cause for defendant's arrest. Defendant has supplemented his appeal to argue that this determination was made in error and that County Court should have conducted a new probable cause hearing.

Initially, we find that the People sufficiently established probable cause for defendant's arrest. At the Huntley/Wade hearing, Officer Daniel J. Stevens testified that a supervising investigator gave him a photograph of defendant and asked him to create a photo array. He created the array, using a database to obtain the photographs of five men with features that were similar to defendant's and presented the array to a woman who had been identified as a witness. According to Stevens, the witness indicated that she recognized defendant and, when asked for the source of her recognition, she answered, "From the trailer in Whitehall that got shot up. He's one of the guys who robbed the Puerto Ricans of their electronics." Jeffrey Horn, an investigator with the State Police, testified that he watched surveillance video taken at the Albany bus station the evening after the robbery and observed defendant and the codefendants handling electronics that were comparable to those reported as stolen from the motel room. It was Horn who, together with other members of the State Police and the Washington County Undersheriff, arrested defendant outside of his home. Horn recalled watching defendant's residence from the street while sitting in an unmarked, gray, Chevrolet Impala police vehicle. Horn described the unmarked vehicle as causing them to "st[ick] out" on the street. Horn watched as defendant came out of his front door and stood on the stoop for a period of time before he noticed the Impala and returned inside. When defendant left the residence the second time, approximately one-half hour later, he was arrested. Horn testified that, prior to the arrest, he was aware that the witness had identified defendant from the photo array.

"Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place" ( People v. Bigelow , 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ; see People v. McRay , 51 N.Y.2d 594, 602, 435 N.Y.S.2d 679, 416 N.E.2d 1015 [1980] ). The relevant question is "not ... defendant's guilt but ... the sufficiency ... of the grounds for the arresting officer's belief that the defendant was guilty" ( People v. Shulman , 6 N.Y.3d 1, 26, 809 N.Y.S.2d 485, 843 N.E.2d 125 [2005] [internal quotation marks, brackets and citation omitted]; see People v. Green , 127 A.D.3d 1473, 1473–1474, 8 N.Y.S.3d 687 [2015], lvs denied 27 N.Y.3d 965, 969, 36 N.Y.S.3d 626, 630, 56 N.E.3d 906, 910 [2016] ). Here, a witness identified defendant as one of the people who "robbed the Puerto Ricans of their electronics," and an officer observed defendant with electronics at the bus station the morning after the robbery. Horn was entitled to rely on the information received from a fellow officer with regard to the positive identification (see People v. Maldonado , 86 N.Y.2d 631, 635, 635 N.Y.S.2d 155, 658 N.E.2d 1028 [1995] ). In our view, the evidence demonstrated that there was probable cause for defendant's arrest (see People v. Zayas–Torres , 143 A.D.3d 1176, 1179, 40 N.Y.S.3d 599 [2016] ; lv denied 30 N.Y.3d 984, 67 N.Y.S.3d 587, 89 N.E.3d 1267 [2017] ) and no supplemental hearing was required. We decline to consider defendant's argument that County Court (McKeighan, J.) was required to apply the Aguilar–Spinnelli test to determine whether the witness was reliable because it was not preserved for our review (see People v. Wolfe , 103 A.D.3d 1031, 1034, 962 N.Y.S.2d 403 [2013], lv denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013] ) and, in any event, is without merit because the witness was not a confidential informant but a known member of the community (see People v. Zayas–Torres , 143 A.D.3d at 1179, 40 N.Y.S.3d 599 ).

We turn next to defendant's arguments that the evidence was not legally sufficient to support a finding of guilt beyond a reasonable doubt and that the jury's verdict was against the weight of the evidence. "[T]he standard of review in determining whether the evidence before the jury was legally sufficient ... is whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to conclude that the elements of the crime had been proven beyond a reasonable doubt" ( People v. Cabey , 85 N.Y.2d 417, 420, 626 N.Y.S.2d 20, 649 N.E.2d 1164 [1995] ). When determining whether a verdict is against the weight of the evidence, we "first ... determine whether an acquittal would not have been unreasonable. If so, [we] must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions. Based on the weight of the credible evidence, [we] then decide[ ] whether the jury was justified in finding the defendant guilty beyond a reasonable doubt" ( People v. Danielson , 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).

At trial, the jury heard testimony that Nichole Lussier, Jessica Lussier and Angela Lawrence resided together and that all three were addicted to and selling crack cocaine for defendant. Defendant became angry because the women obtained drugs from another supplier, who was residing in a nearby hotel in the area, and together they devised a plan to rob the supplier. Specifically, Lawrence, defendant and three other men would go to the hotel, Lawrence would knock on the door under the guise of seeking more drugs and defendant and the other men would forcibly enter to steal drugs and money. In furtherance of this plan, Jessica Lussier provided a "pellet hand gun" that was "not capable of shooting and killing anybody" and a "little bat," made of wood, known as a tire checker.

Brendaliz Febus testified that she, her father, her boyfriend, Xaymarie Rios and Rios' three children—a seven year old, a four year old and a nine month old—were residing in two hotel rooms. On April 11, 2013, while Febus' father and her boyfriend were out of town—leaving Febus, Rios and the two younger children in one of the two hotel rooms—there was a knock at the door and Febus opened it slightly to find Lawrence, who was looking for one of the two men. Febus recalled seeing shadows, then three men outside with Lawrence. When she tried to shut the door, the group pushed it back open and one of the men "put the gun in [her] face." Febus testified that a fourth man came into the room and that "somebody ... had like a bat." Rios recalled four men in the room, that one man "had something like a bat" and that a man with a gun was "moving it" and telling Febus to shut up. Febus testified that she yelled at the men to leave, told them repeatedly that she did not have any money or drugs and that she had to pull her shirt down to prove that she was not hiding anything. After staying for approximately 15 minutes, the men left, taking two video gaming systems, some jewelry, cellular phones, four pieces of crack and a bag of change with them. The group returned to the residence shared by the Lussiers and Lawrence, and the four men left after finding a taxicab to take them to the bus station in Albany. An investigator with the State Police testified that he obtained a plastic "BB [or] pellet" gun and a "baton" from Lawrence's residence.

As...