People v. Nieves

• Decision Date: 01 November 1994
• Citation: People v. Nieves, 617 N.Y.S.2d 751, 205 A.D.2d 173 (N.Y. App. Div. 1994)
• Parties: The PEOPLE of the State of New York, Respondent, v. Orlando NIEVES, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 751

617 N.Y.S.2d 751

205 A.D.2d 173

The PEOPLE of the State of New York, Respondent, v. Orlando NIEVES, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Nov. 1, 1994.

Michael Eisenstein, for appellant.

Stanley R. Kaplan, of counsel (Billie Manning with him on the brief; Robert T. Johnson, Dist. Atty. of Bronx County, attorney), for respondent.

Before SULLIVAN, J.P., and CARRO, ROSENBERGER, WALLACH and RUBIN, JJ.

RUBIN, Justice.

Appellant, acting in concert with John Stokes and Evelyn Smith, robbed a Getty Mart convenience store in Greenwich, Connecticut, in the early afternoon of May 18, 1990, during which he demanded money from an employee at knifepoint. Stokes was tried separately and convicted of murder in the second degree, unauthorized use of a motor vehicle in the first degree, reckless endangerment in the first degree and leaving the scene of an accident without making a report for which he received concurrent terms of imprisonment of 25 years to life, 2 1/3 to 7 years, 2 1/3 to 7 years and 1 to 3 years, respectively. Smith pleaded guilty to attempted murder in the second degree and was sentenced to a term of 6 to 18 years' imprisonment.

On May 18, 1990, at approximately 12:45 p.m., Detective Joseph Gavin of the Greenwich, Connecticut, Police Department was assigned to surveillance duty at a Getty Mart located at 1324 East Putnam Road when he observed a light-colored, older-model Chevrolet pull into the lot at the furthest point from the building and the gas pumps. He saw appellant and a woman emerge from the car and walk quickly to the store. As Detective Gavin maneuvered his unmarked car to get a better view, the driver of the Chevrolet started to back out of the parking space. The detective notified headquarters that something unusual was happening.

Inside the store, Shyam Lal was working behind the counter when appellant entered. Appellant pulled out a knife, came around the counter, put the knife to Mr. Lal's stomach and ordered him to open the cash register. A female then joined appellant. She grabbed about $100 from the cash register and took between five and ten cartons of cigarettes, placing the money and the cartons in a plastic bag. Appellant and the woman left, telling Lal not to touch anything. When they were gone, Lal sounded the store's alarm.

Detective Gavin saw appellant and the woman run from the store to the Chevrolet. Appellant had something in front of him and the woman appeared to be carrying a bag or a cloth. Appellant entered the rear of the car and the woman entered the right front passenger's side. The car then proceeded at a high rate of speed out of the exit with Detective Gavin in pursuit. Detective Gavin notified headquarters and another police car, stationed at Exit 5 on Interstate I-95, of a possible robbery.

As he followed the car, with his lights and siren activated, the detective watched the police car stationed at Exit 5 pull out to block the road. The Chevrolet swerved to the left, however, and proceeded onto the Thruway, heading southbound towards New York City. The car continued to swerve from lane to lane at speeds up to 80 or 90 m.p.h.

At about this time, Captain Peter Robbins of the Greenwich, Connecticut, Police Department, who had directed the surveillance at the Getty Mart and monitored the radio transmissions, drove to the on-ramp of I-95 at Exit 3, accompanied by Sergeant James Walters. They saw the suspects' car on I-95 being followed by an unmarked police car. Captain Robbins drove his vehicle in the right lane of I-95, intending to box in the Chevrolet behind another police car that had pulled in front. The Chevrolet swung to the left, however, overtaking the police car ahead of it. The suspects' car then moved into the fast lane, continuing at a high rate of speed and eventually crossing the state line to New York. As Captain Robbins managed to get his vehicle into proximity, Sergeant Walters pointed his service revolver at the driver of the Chevrolet. The driver responded by making an obscene gesture with the middle finger of his hand, while appellant ducked down in the back seat. The driver then swerved the Chevrolet to the left, forcing Captain Robbins to continue following behind it. When Captain Robbins again tried to pull alongside, the Chevrolet swerved, forcing the captain into a breakdown lane.

The chase continued through the New Rochelle Toll Plaza. The Chevrolet was travelling in a lane closed to traffic, sending traffic cones flying and forcing two workers to get out of its path. Captain Robbins, still following along behind, never saw any brake lights, while observing on his own speedometer that he was going 80 m.p.h. Captain Robbins continued to simply follow the Chevrolet because the driver's repeated swerving made it too dangerous to approach. In the vicinity of Exit 10 on I-95, the captain noticed that the car had a "blow out" on the right rear tire. The driver did not brake or slow down, even though the car was now riding only on the rim of that wheel.

When the flow of traffic on I-95 became blocked, the Chevrolet left the highway at Exit 11 (Bartow Avenue, Bronx County), with Captain Robbins' car following behind. The suspects' car proceeded down a ramp, approaching the intersection of Edison and Bartow Avenues. There, a panel truck, flanked by two passenger cars, was stopped at a red light. The getaway car approached the left side of the truck and the passenger side of the car situated to its left. As traffic started to move after the light turned green, the right side of the suspects' car appeared to Captain Robbins to contact the left side of the panel truck. The Chevrolet then started to swing to the left. As Captain Robbins proceeded down the ramp towards the right side of the roadway, the panel truck veered to the right, colliding with the left side of Captain Robbins' car.

The Chevrolet, occupied by appellant and his codefendants, cleared the intersection going backwards across Edison Avenue. It hit a bus shelter and continued for a short distance before coming to a halt. Sergeant Walters observed that, upon impact with the bus shelter, a woman who was standing at the bus stop was tossed into the air.

Police Officer Timothy Biggs of the Greenwich, Connecticut, Police Department saw the woman, identified as Ms. Gladys Davis, lying on the sidewalk. She was unconscious and bleeding heavily. Part of her lower leg had been severed. Since Officer Biggs was an emergency medical technician, he tried to assist the woman, applying a tourniquet and giving her oxygen. He called for an ambulance, which arrived five to ten minutes later. Ms. Davis subsequently expired at the hospital.

Sergeant Rick Cochran of the Greenwich, Connecticut, Police Department saw appellant and two others exit the car. Appellant, holding a knife in his right hand, ran through a parking lot. Sergeant Cochran saw an off-duty officer pursue appellant, stating, "Police, drop the knife". Although the off-duty officer had drawn his revolver, pointed it at appellant and told him three times to drop the knife, appellant refused. Sergeant Cochran then signaled his police dog to subdue appellant. The dog brought appellant down, causing him to drop the knife, which the sergeant secured. The sum of $104 was recovered from appellant's right front pocket. Upon examining the interior of the Chevrolet, Sergeant Cochran found a number of cigarette cartons on the floor in the area of the passenger seat.

Detective Hans Hansen of the Greenwich, Connecticut, Police Department, with his partner, Detective Richard Haug, joined the chase towards the end of the pursuit. Detective Hansen spoke to appellant in the back seat of a police car, informing appellant of the officer's capacity and reading appellant his Miranda rights. Appellant indicated that he understood his rights and stated that he had been involved in a robbery at a gas station in Greenwich and that, earlier in the day, he had recruited John Stokes to be the driver of the getaway car. He further admitted that the knife belonged to him.

Detective John Collins of the New York City Police Department Highway Unit Number One, Accident Investigation Squad, responded to the scene and examined the Chevrolet used in the robbery. He found no indication that the car had been struck by another vehicle.

On May 19, 1990, an autopsy was performed on Ms. Davis. The cause of death was determined to be skeletal fractures with near amputation and bleeding due to blunt impact. Her injuries were consistent with being hit by a car.

Following a two-week jury trial during which the People presented 14 witnesses, appellant was convicted of murder in the second degree based upon the felony murder provision of the homicide statute (Penal Law § 125.25[3]. Given the circumstances, including the identification of appellant by the Getty Mart employee, the observation of the escape from the scene of the crime by Detective Gavin, the apprehension of the robbers after a car chase and the recovery of about $100 in currency and cartons of cigarettes taken from the convenience store, the proof of appellant's participation in this crime is overwhelming.

The bulk of appellant's arguments on appeal concerns the jurisdiction of the courts of this State to try him for felony murder in connection with a felony committed outside the State. Essentially, appellant asserts that the felony murder statute represents merely a sentence-enhancement device. Therefore, he concludes, the courts of the state in which the underlying felony was committed should have exclusive jurisdiction to prosecute those involved in the crime.

Appellant further argues that the exercise of jurisdiction by the State of New York is barred by CPL 20.20 because he lacks accessorial accountability for the conduct of John Stokes in causing the death of Gladys Davis (Penal Law § 20.00). He notes that the felony murder statute requires "more...