People v. Tyler

• Decision Date: 23 May 1985
• Citation: 489 N.Y.S.2d 619,111 A.D.2d 528
• Parties: The PEOPLE of the State of New York, Respondent, v. Billie E. TYLER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 619

489 N.Y.S.2d 619

111 A.D.2d 528

The PEOPLE of the State of New York, Respondent, v. Billie E. TYLER, Appellant.

Supreme Court, Appellate Division,

Third Department.

May 23, 1985.

Bernard H. Bryan, Albany, for appellant.

Sol Greenberg, Albany County Dist. Atty. (John P.M. Wappett, Albany, of counsel), for respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.

CASEY, Justice.

Appeal from a judgment of the County Court of Albany County rendered October 12, 1983, upon a verdict convicting defendant of the crime of robbery in the second degree.

Defendant argues on this appeal that his oral statements should have been suppressed because of the illegality of his detention. The initial stop of defendant was made by Albany Police Sergeant Michael De Marco based on a radio report that he had received from Officer Sean Keane, who was patrolling the Albany bus station. The information provided by Keane to De Marco was obtained from a motorist named Peter Rezey who had observed the activities of defendant and his two female companions at about 4:00 A.M. on June 16, 1983 near the corner of Broadway and State Street in the City of Albany, where the two females were pushing an 88-year-old man named Warren Hulsopple and defendant was standing nearby holding a flower pot. When he drove around the block to further investigate, Rezey saw defendant and the two females walking together on Pearl Street. Rezey drove to the bus station and informed Officer Keane of his observations. Keane's radio report of the incident was forwarded to Sergeant De Marco. De Marco proceeded to the scene and stopped the two women in the company of defendant, who was still carrying the flower pot.

Hulsopple was brought to the scene, but was unable to make an identification. Defendant and his two companions were then permitted to proceed. When they had walked several hundred yards down the street, Rezey again drove by and was stopped by the police who had arrived there. Rezey informed De Marco that he was a witness and that defendant and the two women, who were still in sight, were the individuals who had robbed Hulsopple. Thereupon defendant and the two women were again stopped. Rezey positively identified them and they were placed under arrest. Defendant was advised of his Miranda rights and stated that he understood them. Defendant then told Officer Keane, "I can take you and show you where the watch is. Just don't charge the two girls." Keane replied that he could not release the women but that recovery of the victim's watch, which had been taken from the victim, would help. Thereupon, defendant and Keane searched for the watch and found it on Maiden Lane near the scene of the crime. During the search, defendant was questioned by Keane about his participation in the crime and stated that he was "just looking out" for the women.

We find meritless defendant's claim that these oral statements should have been suppressed. The initial stop of defendant was supported by the radio report of Officer Keane from the information given by Rezey. The report provided reasonable suspicion sufficient to justify the initial detention (People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872). When the victim failed to identify the trio, they were immediately released and reapprehended only after Rezey supplied the additional information that he had witnessed the perpetration of the crime and made a positive identification of defendant and his two companions. This information provided probable cause for defendant's arrest (People v. Debour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562). Having been placed in custody, defendant was given his Miranda warnings and he waived his rights thereunder, rendering admissible the oral statements that he made and which were found to be voluntary by the trial court.

Prior to trial, the two women entered pleas of guilty to attempted robbery in the second degree and each was sentenced to 2 1/3 to 7 years in prison. Both testified against defendant. At trial, defendant testified in his own behalf and denied participation in the crime, contending that he was legally blind and, therefore, could not act as a lookout. The trial court refused to take judicial notice of a New York statute defining blindness, but permitted an expert to state that defendant was legally blind and could probably see up to a distance of only 50 feet. On cross-examination, defendant was questioned about several of his previous convictions. At the close of the evidence, defendant requested that conspiracy in the fourth degree be charged as a lesser included offense. He also requested in specific language a charge on corroboration of an accomplice witness and on intoxication insofar as it negated defendant's intent to commit the crime charged, and also a clarification of Penal Law § 20.00. These requests were denied. Defendant was found guilty of robbery in the second degree and sentenced as a second felony offender to 7 to 15 years in prison.

We find no error in the trial court's refusal to charge conspiracy in the fourth degree, since that crime is not a lesser included offense of robbery in the second...