People v. HarrisPeople v. Harris
Defendant was charged by indictment with the crimes of robbery in the first and second degrees based upon his participation in the holdup of a convenience store in the City of Albany. Two of defendant’s accomplices, Kadesha Miller and Myava Murphy, pleaded guilty in connection with the robbery and testified against defendant and a fourth participant in the crime, Martese Slater (see People v Slater, 13 AD3d 732 [2004], lv denied 4 NY3d 803 [2005]). After a jury trial, defendant was found guilty as charged and later sentenced, as a predicate felony offender, to an aggregate prison term of 17 1/2 years.
We first turn on this appeal to defendant’s claim that the statements he made to police following his apprehension should have been suppressed as the fruit of a violation of his indelible right to counsel. Specifically, defendant avers that law enforcement circumvented that right by arresting him without a warrant when, in fact, they possessed sufficient information to obtain a warrant prior to his arrest.
Under the facts of the instant case, however, there exists no similar rationale for excluding the statements made by defendant. Defendant was not arrested in his home; he was spotted on the streets of Albany and, when approached by police—who had information that defendant may have been involved in a robbery—he took flight and was later apprehended in a nearby building. Regardless of whether the police had sufficient information to obtain an arrest warrant in advance of this encounter, it is well settled that, once defendant was discovered in the open, the police were “at liberty to refrain from securing an arrest warrant in order to question . . . defendant in the absence of counsel” (People v Counts [Q.], 214 AD2d 897, 897 [1995], lvs denied 86 NY2d 792, 800 [1995]; accord People v Anderson, 290 AD2d 658, 658-659 [2002], lv denied 97 NY2d 750 [2002]; see also People v Martin, 254 AD2d 692 [1998], lv denied 93 NY2d 855 [1999]; People v Dyson, 221 AD2d 1004, 1004-1005 [1995], lv denied 87 NY2d 1019 [1996]).
We next address defendant’s claim that his convictions were not supported by legally sufficient evidence. With regard to the top count of the indictment, one is “guilty of robbery in the
Miller and Murphy each testified that, while serving as lookouts, they witnessed Slater enter the store armed with a handgun, with defendant in close pursuit. Slater then proceeded to grab one of the store clerks by the neck, strike him with the gun and place it to the clerk’s head, demanding money (see generally People v Lopez, 73 NY2d 214, 219-222 [1989]). During the struggle, Slater fired a shot, striking no one, and, after Slater took an unspecified amount of cash from behind the store counter, the four perpetrators exited the store. They then split the proceeds and went their separate ways. Moreover, the version of events given by Miller and Murphy was corroborated by defendant’s own statement to the police and by a videotape from the store depicting all four perpetrators entering the establishment (see
We also find unpersuasive defendant’s claim that the evidence was insufficient to establish that he was a knowing participant in the crime. There was testimony that the four perpetrators discussed the robbery in advance and that defendant expressed a willingness to participate. Moreover, there was evidence that Slater test-fired his handgun in defendant’s presence prior to entering the store and that defendant directly assisted in the robbery by pushing a second store clerk to the ground, holding
Furthermore, Supreme Court did not err in rejecting defendant’s request for a missing witness charge. Although defendant made a prima facie showing that Ali Elmnteser, the store cashier assaulted by Slater, was “knowledgeable about a pending material issue and . . . would be expected to testify favorably” for the People (People v Gonzalez, 68 NY2d 424, 428 [1986]; see People v Wills, 183 AD2d 938, 939 [1992], lv denied 80 NY2d 935 [1992]), the People nonetheless established that Elmnteser was unavailable to testify due to the People’s inability to ascertain his whereabouts despite their diligent efforts (see People v Skaar, 225 AD2d 824, 824 [1996], lv denied 88 NY2d 854 [1996]). An investigator testified that he learned that, Elmnteser left the Albany area and either moved to New York City or returned to his home in Yemen. The investigator indicated that Elmnteser left no forwarding information, and federal immigration officials revealed no record of Elmnteser either leaving or entering the country. Accordingly, under these circumstances, a missing witness charge would not have been an appropriate sanction (see People v Savinon, 100 NY2d 192, 197-198 [2003]).
Finally, we have considered defendant’s claim concerning the severity of his statutorily permissible sentence (see
Mercure, Carpinello, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed.