People v. Newell

• Decision Date: 02 March 2017
• Citation: 48 N.Y.S.3d 800,148 A.D.3d 1216
• Parties: The PEOPLE of the State of New York, Respondent, v. Levon NEWELL, Appellant.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 1216
48 N.Y.S.3d 800

The PEOPLE of the State of New York, Respondent,
v.
Levon NEWELL, Appellant.

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

March 2, 2017.

48 N.Y.S.3d 802

John T. Casey Jr., Troy, for appellant.

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

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

EGAN JR., J.

148 A.D.3d 1216

Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.), rendered October 17, 2012, upon a verdict convicting defendant of the crimes of robbery in the first degree (two counts) and attempted robbery in the first degree (two counts).

Defendant was charged in a multi-count indictment with attempted murder in the second degree, assault in the first degree, two counts of robbery in the first degree (causing serious physical injury), two counts of robbery in the first degree (armed with a deadly weapon), attempted robbery in the first degree (causing serious physical injury) and attempted robbery in the first degree (armed with a deadly weapon). The charges stemmed from an incident that occurred on the evening of October 3, 2011 in the City of Troy, Rensselaer County, during the course of which the two victims—Gary Donnelly and

148 A.D.3d 1217

Denaya Tremont—were forcibly relieved of certain personal property and Donnelly was shot with a sawed-off shotgun wielded by defendant's codefendant, Rahcief Collier. Defendant, who was in the line of fire, also sustained a gunshot wound to his left arm.

Donnelly testified at trial that, on the day in question, he received a text message from Collier, who was looking to purchase some marihuana. The two agreed to meet later that evening. At approximately 9:30 p.m., Donnelly and Tremont arrived at the agreed-upon location in a Jeep Wrangler belonging to Donnelly's aunt

48 N.Y.S.3d 803

and, with the windows to the vehicle rolled down, awaited Collier's arrival. Eventually, another vehicle arrived and two men exited; Collier, armed with what Donnelly described as a sawed-off shotgun, approached the driver's side of the Jeep Wrangler, while the other man—later determined to be defendant—approached the passenger side of the vehicle.¹ Donnelly testified that Collier "put the gun to [Donnelly's] face and told [Donnelly] to give him everything and that he was going to pull the trigger." While this was occurring, defendant was "scrambling to get in to get the [passenger] door opened," whereupon defendant "pulled [Tremont] out" of the vehicle. As Donnelly focused his attention on defendant, who "was just grabbing at anything he could, trying to get something," Collier struck Donnelly in the back of the head with what felt like the butt of the shotgun. In response, Donnelly grabbed the barrel of the shotgun, "gave [Collier] a shove back" and again turned his attention toward defendant. When Donnelly "turned back around" to Collier, Collier fired the shotgun, shooting both Donnelly and defendant, with Donnelly sustaining an injury to his left forearm that resulted in intense pain and profuse bleeding and required two surgeries to repair. According to Donnelly, the items taken from the vehicle included, among other things, his house key and Tremont's cell phone. Tremont's testimony mirrored Donnelly's account of the incident, stating that she was "ripped ... out of the car" by one of the assailants—again, later determined to be defendant—and that he, in turn, took her cell phone.

Following a jury trial, defendant was convicted of two counts of robbery in the first degree

148 A.D.3d 1218

(pertaining to Tremont's cell phone) and two counts of attempted robbery in the first degree (pertaining to certain items belonging to Donnelly). Defendant thereafter was sentenced to 15 years in prison followed by five years of postrelease supervision upon his robbery convictions and 10 years in prison followed by five years of postrelease supervision upon his attempted robbery convictions—said sentences to run concurrently. This appeal by defendant ensued.²

Initially, we reject defendant's claim that County Court erred in denying his request for a Dunaway hearing. "A motion seeking suppression of evidence must state the ground or grounds of the motion and must contain sworn allegations of fact supporting such grounds" (People v. Desmond, 118 A.D.3d 1131, 1133, 988 N.Y.S.2d 703 [2014] [internal quotation marks, ellipsis and citation omitted], lv. denied 24 N.Y.3d 1002, 997 N.Y.S.2d 120, 21 N.E.3d 572 [2014] ). Notably, "[a] hearing in this regard is neither automatic nor generally available simply for the asking" (People v. Briskin, 125 A.D.3d 1113, 1117, 3 N.Y.S.3d 200 [2015] [internal quotation marks, brackets and citations omitted], lv. denied 25 N.Y.3d 1069, 12 N.Y.S.3d 621, 34 N.E.3d 372 [2015] ). Here, as County Court aptly observed, no sworn allegations of fact were offered in support of defendant's request; rather, defendant merely asked the court "to determine if in fact the People, and its agents in law enforcement[,] had probable cause to detain, arrest and search defendant and

48 N.Y.S.3d 804

seize tangible property at the time of arrest." Under these circumstances, County Court did not abuse its discretion in denying defendant's request for a Dunaway hearing (see id. at 1117, 3 N.Y.S.3d 200 ; compare People v. Mabeus, 47 A.D.3d 1073, 1074–1075, 850 N.Y.S.2d 664 [2008] ; People v. McNair, 28 A.D.3d 800, 800–801, 811 N.Y.S.2d 819 [2006] ).

As to the Huntley hearing conducted in this matter, "[a]t a hearing to suppress statements made to law enforcement officials, the People have the burden of demonstrating, beyond a reasonable doubt, that the defendant's statements were voluntary and that the defendant knowingly, intelligently, and voluntarily waived his or her Miranda rights prior to making the statements" (People v. Johnson, 139 A.D.3d 967, 969, 34 N.Y.S.3d 62 [2016] [internal citations omitted], lv. granted 28 N.Y.3d 939, 40 N.Y.S.3d 367, 63 N.E.3d 87 [2016] ; see People v. Loucks, 125 A.D.3d 890, 890, 2 N.Y.S.3d 620 [2015], lv. denied 25 N.Y.3d 1167, 15 N.Y.S.3d 298, 36 N.E.3d 101 [2015] ). "If the People meet their burden, the defendant then bears the burden of persuasion" (People v. Johnson, 139 A.D.3d at 969, 34 N.Y.S.3d 62 [citations omitted]; see People v. Brown, 46 A.D.3d 1128, 1129, 847 N.Y.S.2d 729 [2007] ). "Proof of voluntariness compatible with due process depends upon the particular circumstances—the totality

148 A.D.3d 1219

—of each case[, and] [a] court must review all of the surrounding circumstances to see whether the defendant's will has been overborne" (People v. Johnson, 139 A.D.3d at 969–970, 34 N.Y.S.3d 62 [internal quotation marks and citations omitted] ).

Here, a detective with the Troy Police Department testified that, based upon information identifying Collier as a suspect in the underlying incident and in light of defendant's known association with Collier, a patrol unit initiated a traffic stop of a vehicle in which Collier and defendant, among others, were riding. Following this stop, defendant was asked to step out of the vehicle, which he did, and the detective asked defendant "if he would be willing to come to the police station and talk." The detective testified that defendant, who was not under arrest at that time, agreed to this request and was transported to the police station—without handcuffs—in a marked patrol vehicle. Upon arriving at the station, defendant was placed in an interview room (the door to which was open), advised of, executed and waived his Miranda rights and thereafter provided an incriminating oral statement to the police, which was recorded by a video camera. The detective testified, and a review of the video confirms, that defendant never asked for the questioning to cease and did not request an attorney until after his oral statement had been reduced to writing—a statement that he then refused to sign.

Contrary to defendant's present claim, the detective's testimony and the corresponding video recording establishes—based upon the totality of the circumstances—that defendant validly waived his Miranda rights and voluntarily gave an incriminating statement to the police (see People v. Zayas–Torres, 143 A.D.3d 1176, 1178, 40 N.Y.S.3d 599 [2016] ; People v. Roseboro, 127 A.D.3d 998, 999, 6 N.Y.S.3d 629 [2015], lv. denied 26 N.Y.3d 934, 17 N.Y.S.3d 97, 38 N.E.3d 843 [2015] ). At the start of the interview, defendant was advised that he was "not under arrest" and that he was "not being charged with anything" at that time—prompting one of the interviewing detectives to explain, "That's why the door's open"; it was not until after defendant waived his Miranda rights and gave an incriminating statement that he was informed that he no longer was "free to leave." Accordingly, County

48 N.Y.S.3d 805

Court properly concluded that defendant's statement indeed was voluntary.

Defendant's...