Opinion
270 KA 16–00627
05-04-2018
The PEOPLE of the State of New York, Respondent, v. Edgardo J. MERCADO–RAMOS, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER 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 burglary in the first degree ( Penal Law § 140.30 [3 ] ), criminal possession of a weapon in the third degree (§ 265.02[1] ) and criminal contempt in the first degree (§ 215.51[b][v] ). We reject defendant's contention that the evidence is legally insufficient to support the conviction of burglary in the first degree on the ground that the People did not establish that he entered the victim's house with intent to commit a crime therein (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). "[A] defendant's intent to commit a crime may be inferred from the circumstances of the entry ..., as well as from defendant's actions and assertions when confronted" ( People v. Maier, 140 A.D.3d 1603, 1603–1604, 34 N.Y.S.3d 544 [4th Dept. 2016], lv. denied 28 N.Y.3d 933, 40 N.Y.S.3d 361, 63 N.E.3d 81 [2016] [internal quotation marks omitted] ). Here, we conclude that there is legally sufficient evidence from which the jury could infer defendant's intent to commit a crime inside the dwelling, including, inter alia, his unauthorized entry through a window while armed with mace and a machete and his violent conduct toward the victim shortly after being confronted inside the dwelling (see People v. Pendarvis, 143 A.D.3d 1275, 1275, 39 N.Y.S.3d 348 [4th Dept. 2016], lv denied 28 N.Y.3d 1149, 52 N.Y.S.3d 300, 74 N.E.3d 685 [2017] ; see also People v. Rivera, 41 A.D.3d 1237, 1238, 837 N.Y.S.2d 460 [4th Dept. 2007], lv denied 10 N.Y.3d 939, 862 N.Y.S.2d 345, 892 N.E.2d 411 [2008] ). We reject defendant's further contention that the evidence of his intoxication negated the element of intent for the crimes of which he was convicted (see People v. Madore, 145 A.D.3d 1440, 1440, 46 N.Y.S.3d 300 [4th Dept. 2016], lv. denied 29 NY3d 1034, 84 N.E.3d 975 [2017] ; People v. Jackson, 269 A.D.2d 867, 867, 703 N.Y.S.2d 804 [4th Dept. 2000], lv denied 95 N.Y.2d 798, 711 N.Y.S.2d 166, 733 N.E.2d 238 [2000] ). Viewing the evidence in light of the elements of the crime of burglary in the first degree as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict finding defendant guilty of that crime is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
We reject defendant's further contention that Supreme Court abused its discretion in denying his motions for a mistrial during jury deliberations. To the extent that defendant contends that the court should have granted his motions for a mistrial with respect to all three counts of the indictment, we reject that contention inasmuch as his motions were made after the jury indicated that it had reached a verdict on one of the counts (see CPL 310.70[1][a], [b] ; People v. Rivera, 15 N.Y.3d 207, 210–211, 906 N.Y.S.2d 785, 933 N.E.2d 183 [2010] ). We also reject defendant's contention to the extent that he contends that the court erred in denying his motions with respect to the two counts on which the jury had not yet reached a verdict. On two occasions when the deliberating jury sent notes indicating that it was unable to reach a unanimous verdict on two of the counts, the court responded appropriately by providing a full Allen charge and instructing the jury to continue deliberating (see People v. Hardy, 26 N.Y.3d 245, 251–252, 22 N.Y.S.3d 377, 43 N.E.3d 734 [2015] ; People v. Huitt, 149 A.D.3d 1481, 1481, 52 N.Y.S.3d 597 [4th Dept. 2017], lv denied 30 N.Y.3d 950, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017] ). " ‘[A]t each of the two junctures the circumstances indicated that further deliberations might be fruitful,’ and ‘neither of the jury's notes was indicative of a hopeless deadlock’ " ( Hardy, 26 N.Y.3d at 252, 22 N.Y.S.3d 377, 43 N.E.3d 734 ). The jury had been deliberating for less than two days and had successfully reached a verdict on one of the counts. Moreover, nothing about the Allen charge issued by the court was coercive (see Huitt, 149 A.D.3d at 1481–1482, 52 N.Y.S.3d 597 ; People v. Arguinzoni, 48 A.D.3d 1239, 1242, 852 N.Y.S.2d 546 [4th Dept. 2008], lv denied 10 N.Y.3d 859, 860 N.Y.S.2d 485, 890 N.E.2d 248 [2008] ; cf. People v. Aponte, 2 N.Y.3d 304, 308–309, 778 N.Y.S.2d 447, 810 N.E.2d 899 [2004] ).
Defendant failed to preserve for our review his further contention that he was denied a fair trial based upon misconduct by the prosecutor during summation. Defendant's objections to the prosecutor's comments "were sustained without any request for a curative instruction and the court is thus deemed to have corrected any error to defendant's satisfaction" ( People v. Ennis, 107 A.D.3d 1617, 1620, 969 N.Y.S.2d 284 [4th Dept. 2013], lv. denied 22 N.Y.3d 1040, 981 N.Y.S.2d 374, 4 N.E.3d 386 [2013], reconsideration denied 23 N.Y.3d 1036, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ). In any event, the comments by the prosecutor were not so egregious as to deny defendant a fair trial (see People v. Dizak, 93 A.D.3d 1182, 1184, 940 N.Y.S.2d 408 [4th Dept. 2012], lv. denied 19 N.Y.3d 972, 950 N.Y.S.2d 355, 973 N.E.2d 765 [2012], reconsideration denied 20 N.Y.3d 932, 957 N.Y.S.2d 691, 981 N.E.2d 288 [2012] ), and any potential prejudice to defendant was alleviated by the court's rulings and instructions (see People v. Flowers, 151 A.D.3d 1843, 1844, 57 N.Y.S.3d 598 [4th Dept 2017], lv denied 30 N.Y.3d 1104, 77 N.Y.S.3d 3, 101 N.E.3d 389 [2018] ), which the jury is presumed to have followed (see People v. Allen, 78 A.D.3d 1521, 1521, 911 N.Y.S.2d 528 [4th Dept. 2010], lv denied 16 N.Y.3d 827, 921 N.Y.S.2d 191, 946 N.E.2d 179 [2011] ). Finally, defendant's sentence is not unduly harsh or severe.