Opinion
2014-01-16
The PEOPLE of the State of New York, Respondent, v. Nyia MERCADO, Appellant.
Matthew C. Hug, Troy, for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Matthew C. Hug, Troy, for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, STEIN and EGAN JR., JJ.
PETERS, P.J.
Appeal from a judgment of the County Court of Schenectady County (Milano, J.), rendered October 13, 2011, upon a verdict convicting defendant of the crimes of robbery in the first degree and criminal possession of a weapon in the second degree (two counts).
At approximately 2:00 a.m. on November 2, 2009, two masked individuals entered a Sunoco station convenience store in the City of Schenectady, Schenectady County. While one brandished a handgun, the other vaulted over the counter and demanded money from the store's clerk. A struggle ensued between the armed robber and a bystander who was present, during the course of which two shots were fired, and the perpetrators thereafter fled the store with money obtained from the cash register.
Later that day, Princess Alava was arrested at her apartment in connection with an unrelated shooting that occurred hours after the robbery. Defendant arrived at Alava's apartment as the police were conducting a search and, after giving defendant permission to enter, police observed her reach under the cushion of a couch and remove a fistful of small-denomination bills. In the course of their search of Alava's apartment, police recovered a black jacket and red scarf resembling the garb worn by the armed robber in the surveillance video, as well as a pistol that forensic evidence revealed to be the source of a projectile recovered from the Sunoco robbery.
Defendant arrived at the police station later that same evening to recover Alava's impounded automobile and, while there, agreed to speak with a detective concerning Alava's whereabouts at the time of the Sunoco robbery. Defendant explained that she and Alava were together for most of the night, that they did not visit any convenience stores that evening and that Alava drove her home at some point before 2:00 a.m. Alava subsequently provided a statement to police implicating herself and defendant in the robbery, after which defendant was charged with robbery in the first degree, two counts of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and assault in the second degree. After the People's first attempt to prosecute defendant ended in a mistrial, a second trial ensued. A jury ultimately convicted defendant of robbery in the first degree and two counts of criminal possession of a weapon in the second degree, but acquitted her of criminal possession of a weapon in the third degree. She was sentenced to concurrent prison terms of 15 years on each count, to be followed by five years of postrelease supervision. Defendant appeals.
The assault charge was dismissed at the close of the People's proof at the first trial.
County Court properly denied defendant's motion to suppress the statement she made to police. “[T]he safeguards required by Miranda are not triggered unless a suspect is subject to custodial interrogation[,][and] [t]he standard for assessing a suspect's custodial status is whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave” (People v. Lewis, 83 A.D.3d 1206, 1207, 920 N.Y.S.2d 846 [2011], lv. denied17 N.Y.3d 797, 929 N.Y.S.2d 105, 952 N.E.2d 1100 [2011] [internal quotation marks and citation omitted]; see People v. Kenyon, 108 A.D.3d 933, 935, 970 N.Y.S.2d 638 [2013], lv. denied21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 [2013] ). The evidence at the Huntley hearing established that defendant had come to the police station of her own accord to recover Alava's impounded automobile. Upon her arrival, an investigator asked if she would talk with him and defendant voluntarily accompanied him to an interview room. Defendant was not restrained in any way during the interview, did not indicate any unwillingness to speak to the investigator and was permitted to leave once the questioning was completed. The interview lasted approximately 45 minutes, was at all times cordial and, to the extent that it related to the previous night's robbery, was investigatory rather than accusatory in nature. While the investigator initially expressed interest in the shooting involving Alava, rather than the robbery in which he considered defendant to be a potential suspect, “[p]olice suspicion of which defendant was unaware could not render [an] otherwise neutral environment coercive” (People v. Rhodes, 83 A.D.3d 1287, 1288, 921 N.Y.S.2d 405 [2011] [internal quotation marks and citation omitted]; see People v. Cordato, 85 A.D.3d 1304, 1310, 924 N.Y.S.2d 649 [2011], lv. denied17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011] ). Given the totality of the circumstances, we agree with County Court that defendant was not subjected to custodial interrogation and that the statement she made to the police was admissible ( see People v. Brown, 107 A.D.3d 1305, 1306, 968 N.Y.S.2d 224 [2013]; People v. Vieou, 107 A.D.3d 1052, 1053, 966 N.Y.S.2d 284 [2013]; People v. Underdue, 89 A.D.3d 1132, 1133, 931 N.Y.S.2d 784 [2011], lv. denied19 N.Y.3d 969, 950 N.Y.S.2d 121, 973 N.E.2d 219 [2012]; People v. Lewis, 83 A.D.3d at 1208, 920 N.Y.S.2d 846).
Defendant next claims that the verdict was against the weight of the evidence, arguing that there is insufficient proof to identify her as one of the perpetrators of the robbery. We disagree. Defendant's identity as the armed robber was established by the testimony of Alava, who provided a detailed account of the robbery consistent with the surveillance footage of the incident and the testimony of the victims. Alava's testimony was corroborated by the testimony of Letesha Henry, a fellow inmate, who explained that, while they were incarcerated, defendant disclosed that she had robbed the Sunoco station with Alava. Furthermore, according to Alava, defendant had obtained the pistol used in the robbery from her mother's boyfriend and, after leaving the Sunoco station, she and defendant returned to her apartment to divide the stolen money, which consisted of small bills. Defendant's former supervisor testified at trial that defendant asked him to exchange a large number of one dollar bills for larger bills at work later that day.
Although defendant testified on her own behalf and denied involvement in the robbery, it was within the province of the jury to assess her credibility and reject her testimony ( see People v. Muniz, 93 A.D.3d 871, 874, 939 N.Y.S.2d 181 [2012], lv. denied19 N.Y.3d 965, 950 N.Y.S.2d 117, 973 N.E.2d 215 [2012]; People v. Rose, 79 A.D.3d 1365, 1366, 912 N.Y.S.2d 347 [2010] ). The fact that Alava and Henry have criminal histories and were each testifying pursuant to cooperation agreements in which they received leniency was fully developed at trial and highlighted to the jury, and did not render their testimony incredible as a matter of law ( see People v. Estella, 107 A.D.3d 1029, 1031, 967 N.Y.S.2d 195 [2013], lv. denied21 N.Y.3d 1042, 972 N.Y.S.2d 539, 995 N.E.2d 855 [2013]; People v. Thompson, 75 A.D.3d 760, 763, 904 N.Y.S.2d 797 [2010], lvs. denied 15 N.Y.3d 893, 912 N.Y.S.2d 581, 938 N.E.2d 1016 [2010], 15 N.Y.3d 894, 912 N.Y.S.2d 582, 938 N.E.2d 1017 [2010], 15 N.Y.3d 896, 912 N.Y.S.2d 584, 938 N.E.2d 1019 [2010] ). Defendant also argues that the victims' descriptions of the armed perpetrator do not match her appearance and stresses the absence of any fingerprints or DNA evidence on the gun or scarf attributable to her, but this simply created credibility issues for the jury to resolve ( see People v. Callicut, 101 A.D.3d 1256, 1259, 956 N.Y.S.2d 607 [2012], lvs. denied 20 N.Y.3d 1096, 965 N.Y.S.2d 792, 988 N.E.2d 530 [2013], 20 N.Y.3d 1097, 965 N.Y.S.2d 793, 988 N.E.2d 531 [2013]; People v. Sims, 57 A.D.3d 1106, 1108–1109, 868 N.Y.S.2d 832 [2008], lv. denied12 N.Y.3d 762, 876 N.Y.S.2d 714, 904 N.E.2d 851 [2009]; People v. Robinson, 53 A.D.3d 681, 683, 860 N.Y.S.2d 680 [2008], lv. denied11 N.Y.3d 794, 866 N.Y.S.2d 620, 896 N.E.2d 106 [2008] ). Thus, while a different verdict would not have been unreasonable, upon evaluating the evidence in a neutral light and deferring to the jury's credibility assessments ( see People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006]; People v. Callicut, 101 A.D.3d at 1259, 956 N.Y.S.2d 607), we are satisfied that the verdict was in accord with the weight of the evidence.
Defendant also asserts that County Court committed reversible error when it permitted the People to introduce evidence of certain prior bad acts during their case-in-chief. By failing to object to County Court's Ventimiglia ruling or upon the admission of such evidence at trial, defendant failed to preserve this issue for our review ( see People v. Tyrell, 82 A.D.3d 1352, 1355–1356, 918 N.Y.S.2d 636 [2011], lv. denied17 N.Y.3d 810, 929 N.Y.S.2d 570, 953 N.E.2d 808 [2011]; People v. Taylor, 253 A.D.2d 471, 471, 675 N.Y.S.2d 320 [1998], lv. denied92 N.Y.2d 952, 681 N.Y.S.2d 482, 704 N.E.2d 235 [1998]; People v. McClain, 250 A.D.2d 871, 872, 672 N.Y.S.2d 503 [1998], lv. denied92 N.Y.2d 901, 680 N.Y.S.2d 65, 702 N.E.2d 850 [1998] ). Significantly, the court gave proper and appropriate limiting instructions regarding the permissible use of such evidence, thus tempering its prejudicial effect ( see People v. Reid, 97 A.D.3d 1037, 1038, 949 N.Y.S.2d 257 [2012], lv. denied19 N.Y.3d 1104, 955 N.Y.S.2d 560, 979 N.E.2d 821 [2012]; People v. Lee, 80 A.D.3d 877, 880, 914 N.Y.S.2d 415 [2011], lvs. denied 16 N.Y.3d 833, 921 N.Y.S.2d 197, 946 N.E.2d 185 [2011], 16 N.Y.3d 832, 921 N.Y.S.2d 197, 946 N.E.2d 185 [2011], 16 N.Y.3d 834, 921 N.Y.S.2d 198, 946 N.E.2d 186 [2011]; People v. Moyer, 75 A.D.3d 1004, 1007, 906 N.Y.S.2d 175 [2010] ).
Were we to address the merits of the claim, we would find that such evidence tended to explain defendant's motive in possessing the gun ( see People v. Reid, 97 A.D.3d 1037, 1038, 949 N.Y.S.2d 257 [2012], lv. denied19 N.Y.3d 1104, 955 N.Y.S.2d 560, 979 N.E.2d 821 [2012]; People v. Burnell, 89 A.D.3d 1118, 1121, 931 N.Y.S.2d 776 [2011], lv. denied18 N.Y.3d 922, 942 N.Y.S.2d 461, 965 N.E.2d 963 [2012]; People v. Lee, 80 A.D.3d 877, 880, 914 N.Y.S.2d 415 [2011], lvs. denied 16 N.Y.3d 832, 921 N.Y.S.2d 197, 946 N.E.2d 185 [2011], 16 N.Y.3d 833, 921 N.Y.S.2d 197, 946 N.E.2d 185 [2011], 16 N.Y.3d 834, 921 N.Y.S.2d 198, 946 N.E.2d 186 [2011]; People v. Williams, 28 A.D.3d 1005, 1008, 814 N.Y.S.2d 353 [2006], lv. denied7 N.Y.3d 819, 822 N.Y.S.2d 494, 855 N.E.2d 810 [2006] ), and County Court's failure to expressly recite its discretionary balancing of the probative value of such evidence against its potential for prejudice would not warrant reversal here ( see People v. Dickson, 82 A.D.3d 1289, 1290, 917 N.Y.S.2d 747 [2011], lv. denied16 N.Y.3d 894, 926 N.Y.S.2d 30, 949 N.E.2d 978 [2011]; People v. Meseck, 52 A.D.3d 948, 950, 860 N.Y.S.2d 263 [2008], lv. denied11 N.Y.3d 739, 864 N.Y.S.2d 397, 894 N.E.2d 661 [2008] ).
Nor are we persuaded that the verdict is repugnant. “ ‘[A] verdict as to a particular count shall be set aside only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury’ ” (People v. Burden, 108 A.D.3d 859, 859–860, 968 N.Y.S.2d 263 [2013], quoting People v. Tucker, 55 N.Y.2d 1, 4, 447 N.Y.S.2d 132, 431 N.E.2d 617 [1981]; accord People v. Muhammad, 17 N.Y.3d 532, 539, 935 N.Y.S.2d 526, 959 N.E.2d 463 [2011] ). As to the relevant elements, the counts of criminal possession of a weapon in the second degree, as charged to the jury, required the People to prove that defendant knowingly possessed a loaded firearm ( seePenal Law § 265.03[1][b]; [3] ). The charge of criminal possession of a weapon in the third degree required the jury to find that defendant knowingly possessed a defaced firearm ( seePenal Law § 265.02 [3] ). Although the parties stipulated that the gun was defaced at the time it was recovered, the jury still had to determine whether it was defaced at the time that defendant possessed it and, if so, whether defendant knew it was defaced. Since defendant could knowingly possess a gun without necessarily knowing that it was defaced, her convictions for criminal possession of a weapon in the second degree were not inconsistent with her acquittal on the criminal possession of a weapon in the third degree count ( see People v. Carter, 60 A.D.3d 1103, 1105–1106, 875 N.Y.S.2d 303 [2009], lv. denied12 N.Y.3d 924, 884 N.Y.S.2d 705, 912 N.E.2d 1086 [2009] ).
Finally, we are unconvinced by defendant's claim that her sentence is harsh and excessive. Defendant entered a convenience store brandishing a loaded handgun, held its occupants at gunpoint and thereafter engaged in a struggle with an innocent bystander during the course of which two shots were fired. Thus, defendant's conduct created a substantial likelihood of serious injury. Moreover, she pleaded guilty to the robbery of another convenience store that occurred on the same evening as the instant robbery. We perceive neither an abuse of discretion nor extraordinary circumstances warranting a reduction of the sentence ( see People v. Castellano, 100 A.D.3d 1256, 1258, 954 N.Y.S.2d 677 [2012], lv. denied20 N.Y.3d 1096, 965 N.Y.S.2d 792, 988 N.E.2d 530 [2013] ). Further, nothing in the record indicates that the sentence imposed was vindictive or otherwise designed to punish defendant for exercising her right to trial ( see People v. Blond, 96 A.D.3d 1149, 1153–1154, 946 N.Y.S.2d 663 [2012], lv. denied19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012] ).
ORDERED that the judgment is affirmed.