Opinion
06-16-2016
The PEOPLE of the State of New York, Respondent, v. Daniel J. CARTER, Appellant.
Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant. Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Before: PETERS, P.J., LAHTINEN, EGAN JR., DEVINE and MULVEY, JJ.
LAHTINEN, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered January 18, 2013, upon a verdict convicting defendant of the crime of burglary in the second degree.
On September 13, 14 and 16, 2011, defendant allegedly entered and took money from the home of an 81–year–old neighbor (hereinafter the victim). He also allegedly entered and took cash from a car parked in a garage attached to the home of another neighbor on September 16, 2011. Following an investigation in which he gave an inculpatory statement to police, he was charged with three counts of burglary in the second degree. A jury acquitted him of two of the counts, but found him guilty of the burglary charge involving the entry of the victim's home on September 16, 2011. County Court sentenced him to 10 years in prison together with postrelease supervision. Defendant appeals.
Defendant contends that the evidence was legally insufficient to establish that he did not have the consent of the victim to enter the victim's home (see Penal Law §§ 140.00[5] ; 140.25[2]; People v. Graves, 76 N.Y.2d 16, 20, 556 N.Y.S.2d 16, 555 N.E.2d 268 [1990] ). The victim, who was elderly and infirm, occasionally had defendant perform chores for him on his property. Defendant had permission to be in the home to do such work while the victim was home. The victim, however, stated on direct examination that defendant did not have permission to enter the home on September 16, 2011. The victim was away when defendant entered on that date, and there was evidence from a neighbor watching the property that defendant accessed the house through a rear cellar door, reflecting that he did not want to be seen entering the home. The victim's testimony was not free from any ambiguity. For example, when cross-examined about a statement given to police after the September 14, 2011 incident but before the September 16, 2011 incident, the victim was asked whether he told police that defendant had permission to be in his home to use the bathroom when the victim was not home, and the victim responded that defendant had “access” to the home and “[p]ossibly” had permission to use the bathroom. Nonetheless, there was adequate proof to corroborate defendant's statement in which he acknowledged that he was “not supposed to” be in the house (see People v. Wilbur, 108 A.D.3d 878, 879, 969 N.Y.S.2d 587 [2013] ). Viewed in the light most favorable to the People, a rational jury could have found, with respect to the September 16, 2011 entry of the victim's home, each of the elements of burglary in the second degree beyond a reasonable doubt (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Briggs, 129 A.D.3d 1201, 1204, 13 N.Y.S.3d 255 [2015], lv. denied 26 N.Y.3d 1038, 22 N.Y.S.3d 167, 43 N.E.3d 377 [2015] ). Further, upon independently weighing the evidence and considering it in a neutral light while according deference to the jury's credibility determinations, we do not find the verdict to be against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 643–646, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ; People v. Morrison, 127 A.D.3d 1341, 1343, 6 N.Y.S.3d 781 [2015], lv. denied 26 N.Y.3d 932, 17 N.Y.S.3d 95, 38 N.E.3d 841 [2015] ).
Defendant asserts several errors regarding the suppression hearing, none of which we find persuasive. With respect to the alleged error by County Court in reopening the hearing, this issue is unpreserved since the hearing was reopened on defendant's motion and without objection from defendant (see People v. Lewis, 117 A.D.3d 751, 751, 988 N.Y.S.2d 626 [2014], lv. denied 24 N.Y.3d 1085, 1 N.Y.S.3d 12, 25 N.E.3d 349 [2014] ). Although the arresting officer did not have personal knowledge of facts providing probable cause for the arrest, he was acting on the direction of the officer who had been investigating the crimes and sufficient proof was presented to establish a lawful arrest under the fellow officer rule (see People v. Ketcham, 93 N.Y.2d 416, 419–420, 690 N.Y.S.2d 874, 712 N.E.2d 1238 [1999] ; People v. Taylor, 134 AD3d 1165, 1169–1170, 20 N.Y.S.3d 708 [2015], lv. denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 [2016] ; People v. Lubrano, 117 A.D.3d 1239, 1240, 985 N.Y.S.2d 754 [2014], lv. denied 25 N.Y.3d 990, 10 N.Y.S.3d 533, 32 N.E.3d 970 [2015] ). County Court credited the officers' testimony and, deferring to those credibility determinations, there is ample proof to support the court's finding that defendant's statement was voluntary in that he was fully informed of, understood and waived his Miranda rights before any questioning commenced (see People v. Nadal, 131 A.D.3d 729, 730, 14 N.Y.S.3d 591 [2015], lv. denied 26 N.Y.3d 1041, 22 N.Y.S.3d 171, 43 N.E.3d 381 [2015] ; People v. Mattis, 108 A.D.3d 872, 874, 969 N.Y.S.2d 581 [2013], lvs. denied 22 N.Y.3d 957, 977 N.Y.S.2d 188, 999 N.E.2d 553 [2013] ).
The remaining arguments do not require extended discussion. Since defendant's conviction is “supported by legally sufficient trial evidence, [his] challenges to the instructions given during the grand jury proceeding are precluded” (People v. Cotton, 120 A.D.3d 1564, 1566, 993 N.Y.S.2d 225 [2014] [internal quotation marks, brackets, ellipsis and citations omitted], lv. denied 27 N.Y.3d 963 [2016] ; accord People v. Gibson, 137 A.D.3d 1657, 1658, 27 N.Y.S.3d 772 [2016] ) and, in any event, do not set forth error requiring reversal (see People v. Pacheco, 56 A.D.3d 381, 384, 868 N.Y.S.2d 625 [2008], lv. denied 12 N.Y.3d 786, 879 N.Y.S.2d 63, 906 N.E.2d 1097 [2009] ). Defendant was not denied the effective assistance of counsel. His attorney, who pursued a cogent strategy and obtained an acquittal on two of the three charges against defendant, provided meaningful representation (see e.g. People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). In light of defendant's lack of remorse and the fact that the sentence was well below the statutory maximum, we find neither extraordinary circumstances nor an abuse of discretion warranting a reduction of his sentence (see People v. Gigliuto, 22 A.D.3d 890, 892, 803 N.Y.S.2d 216 [2005], lv. denied 7 N.Y.3d 789, 821 N.Y.S.2d 819, 854 N.E.2d 1283 [2006] ), and County Court's comments at sentencing do not reflect bias affecting the sentence imposed (see People v. Ganoe, 122 A.D.3d 1003, 1003–1004, 995 N.Y.S.2d 837 [2014], lv. denied 25 N.Y.3d 1163, 15 N.Y.S.3d 295, 36 N.E.3d 98 [2015] ; People v. Boccaccio, 288 A.D.2d 898, 898, 732 N.Y.S.2d 385 [2001] ; People v. Neish, 232 A.D.2d 744, 746–747, 649 N.Y.S.2d 48 [1996], lv. denied 89 N.Y.2d 927, 654 N.Y.S.2d 729, 677 N.E.2d 301 [1996] ).
ORDERED that the judgment is affirmed.
PETERS, P.J., EGAN JR., DEVINE and MULVEY, JJ., concur.