        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

509
KA 11-02365
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EFFRIN MCNEILL, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered November 7, 2011. The judgment convicted
defendant, upon a jury verdict, of robbery in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of robbery in the first degree (Penal Law § 160.15
[3]). Contrary to defendant’s contention, County Court properly
denied his request to charge robbery in the third degree (§ 160.05) as
a lesser included offense of robbery in the first degree. We conclude
that there was no reasonable view of the evidence that defendant
committed robbery in the third degree and not robbery in the first
degree inasmuch as there was no evidence that defendant used physical
force other than the threatened use of a knife, i.e., a dangerous
instrument (see Penal Law §§ 10.00 [13]; 160.15 [3]), to steal the
property (see People v James, 11 NY3d 886, 888). Indeed, the store
clerk testified that defendant displayed and threatened the use of a
knife and identified a knife that was recovered from defendant as
being the knife that was used during the robbery. Furthermore,
although the surveillance recording of the robbery does not clearly
show the knife in defendant’s hand, the recording confirms the clerk’s
testimony that he stepped back when he saw the knife.

     Defendant further contends that he was denied a fair trial by the
admission of a witness’s prior consistent statement, to wit, the store
clerk was permitted to testify that he told his store manager and a
police officer that the perpetrator displayed a knife during the
robbery. Although “[a]n out-of-court statement made by a witness
[that] is consistent with that witness’s trial testimony is generally
inadmissible as hearsay” (People v Mack, 89 AD3d 864, 866, lv denied
18 NY3d 959), any error in admitting that testimony was harmless.
                                 -2-                           509
                                                         KA 11-02365

There is overwhelming evidence of defendant’s guilt and there   is no
significant probability that he would have been acquitted but   for the
error (see People v Corchado, 299 AD2d 843, 844, lv denied 99   NY2d
581; People v Alshoaibi, 273 AD2d 871, 872, lv denied 95 NY2d   960; see
generally People v Crimmins, 36 NY2d 230, 241-242).

     We agree with defendant that the court, in denying his motion to
suppress, failed to place its findings of fact and conclusions of law
upon the record as required by CPL 710.60 (6). “The failure to do so
is not fatal, however, where, as here, there has been a full and fair
hearing. In such instances, this [C]ourt may make its own findings of
fact and conclusions of law” (People v Lewis, 172 AD2d 1020, 1021; see
People v Clark, 262 AD2d 1051, 1051, lv denied 93 NY2d 1016).
Defendant moved to suppress certain tangible evidence, contending that
it was seized as the result of an arrest that was made without
probable cause. We reject that contention. The evidence from the
suppression hearing establishes that a store clerk provided the police
with a description of the clothing worn by the perpetrator and the
unique vehicle he used to leave the scene—a bicycle that was towing a
trailer. Based on a radio dispatch containing that information, an
officer detained a person riding a bicycle that was towing a trailer
near the scene of the robbery. The person riding the bicycle informed
the officer that he had just been given the bicycle by another man.
That person pointed out another person who was walking nearby, and
whose age and clothing fit the description of the perpetrator.
Additionally, police officers found items matching the description of
the stolen property in the trailer that was attached to the bicycle in
question, and defendant was found in possession of a blue pocket knife
that was consistent with the knife displayed during the robbery. We
thus conclude that the police had probable cause to arrest defendant,
i.e., they had “knowledge of facts and circumstances ‘sufficient to
support a reasonable belief that an offense has been or is being
committed’ ” (People v Maldonado, 86 NY2d 631, 635). Finally, we also
conclude that the sentence is not unduly harsh or severe.




Entered:   June 7, 2013                        Frances E. Cafarell
                                               Clerk of the Court
