Opinion
817 KA 21-01067
11-17-2023
The PEOPLE of the State of New York, Respondent, v. Raymond F. NEWTON, Defendant-Appellant.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT. GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (MATTHEW J. BELL OF COUNSEL), FOR RESPONDENT.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (MATTHEW J. BELL OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, GREENWOOD, NOWAK, AND DELCONTE, 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 second degree ( Penal Law § 140.25 [2] ) and petit larceny (§ 155.25). Defendant contends that he was denied due process of law when the prosecutor failed to correct a witness's statement that he did not receive a favorable plea deal in an unrelated case as an incentive for his testimony in this case. Defendant failed to preserve that contention for our review (see People v. Golson , 93 A.D.3d 1218, 1219-1220, 940 N.Y.S.2d 423 [4th Dept. 2012], lv denied 19 N.Y.3d 864, 947 N.Y.S.2d 412, 970 N.E.2d 435 [2012] ). In any event, his contention is without merit inasmuch as the prosecutor asked additional questions that clarified the witness's equivocal testimony regarding the plea deal (see People v. Rositas , 187 A.D.3d 608, 608-609, 131 N.Y.S.3d 128 [1st Dept. 2020], lv denied 36 N.Y.3d 1053, 140 N.Y.S.3d 867, 164 N.E.3d 954 [2021] ; see generally People v. Colon , 13 N.Y.3d 343, 349, 890 N.Y.S.2d 424, 918 N.E.2d 936 [2009], rearg denied 14 N.Y.3d 750, 898 N.Y.S.2d 541, 925 N.E.2d 579 [2010] ; People v. Reed , 151 A.D.3d 1821, 1823, 57 N.Y.S.3d 311 [4th Dept. 2017], lv denied 30 N.Y.3d 952, 67 N.Y.S.3d 136, 89 N.E.3d 526 [2017] ). Moreover, to the extent that the witness's testimony was still unclear, any error was harmless inasmuch as the evidence is overwhelming and there is no reasonable possibility that the error contributed to the conviction (see Colon , 13 N.Y.3d at 349, 890 N.Y.S.2d 424, 918 N.E.2d 936 ; People v. Pressley , 91 N.Y.2d 825, 827, 666 N.Y.S.2d 555, 689 N.E.2d 525 [1997] ). In his summation, the prosecutor noted that the witness was offered a plea deal, and County Court instructed the jury that the witness was offered a plea to a lesser offense in exchange for his testimony (see Golson , 93 A.D.3d at 1220, 940 N.Y.S.2d 423 ).
Defendant next contends that the conviction of burglary in the second degree is not supported by legally sufficient evidence that he was the perpetrator. By failing to renew his motion for a trial order of dismissal at the close of his case, defendant failed to preserve that contention for our review (see People v. Hines , 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ). In any event, his contention is without merit. "Viewing the evidence in the light most favorable to the People, and giving them the benefit of every reasonable inference" ( People v. Bay , 67 N.Y.2d 787, 788, 501 N.Y.S.2d 19, 492 N.E.2d 127 [1986] ; see People v. Delamota , 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ), we conclude that there is a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion" that defendant was the perpetrator of the burglary ( People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; see People v. McKoy , 213 A.D.3d 1269, 1269-1270, 182 N.Y.S.3d 452 [4th Dept. 2023] ; People v. Colon , 211 A.D.3d 1613, 1614, 180 N.Y.S.3d 455 [4th Dept. 2022], lv denied 39 N.Y.3d 1141, 188 N.Y.S.3d 453, 209 N.E.3d 1278 [2023] ). The victim testified that a window of her house had been broken and several items inside the home were missing, including three distinctive swords and 40 to 50 dolls. Defendant's DNA matched a sample taken from that interior windowsill. Defendant admitted that he was depicted on several surveillance videos walking from the direction of the victim's home carrying items to a shed next door to the victim's home, where he was staying temporarily. In addition, two witnesses testified that they went to the shed on the day of the incident and observed the swords and dolls. Viewing the evidence in light of the elements of the crime of burglary in the second 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 reject defendant's further contention that the verdict with respect to that count is 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 ).
Defendant's contention that the court erred in granting the People's motion to compel a DNA buccal swab because the application was not supported by probable cause is not preserved for our review inasmuch as defendant did not oppose the motion or move to suppress the results (see CPL 470.05 [2] ; People v. Easley , 124 A.D.3d 1284, 1284, 1 N.Y.S.3d 640 [4th Dept. 2015], lv denied 25 N.Y.3d 1200, 16 N.Y.S.3d 523, 37 N.E.3d 1166 [2015] ). In any event, his contention is without merit inasmuch as the indictment provided the requisite probable cause (see People v. Hogue , 133 A.D.3d 1209, 1212, 19 N.Y.S.3d 640 [4th Dept. 2015], lv denied 27 N.Y.3d 1152, 39 N.Y.S.3d 386, 62 N.E.3d 126 [2016] ; see generally CPL 245.40 [1] [e] ; Matter of Abe A. , 56 N.Y.2d 288, 291, 452 N.Y.S.2d 6, 437 N.E.2d 265 [1982] ), and we therefore reject defendant's further contention that he was denied effective assistance of counsel based on defense counsel's failure to oppose the motion or move to suppress the results (see People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Johnson , 81 A.D.3d 1428, 1428-1429, 917 N.Y.S.2d 487 [4th Dept. 2011], lv denied 16 N.Y.3d 896, 926 N.Y.S.2d 31, 949 N.E.2d 979 [2011] ). Defendant's contention that he was denied due process of law because the People failed to comply with CPL 245.50 is not preserved for our review (see CPL 245.50 [4] [a] ; 470.05 [2]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Contrary to defendant's contention, the court did not abuse its discretion in granting the People's request for an adjournment after the trial had begun. " ‘[T]he granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court’ " ( People v. Diggins , 11 N.Y.3d 518, 524, 872 N.Y.S.2d 408, 900 N.E.2d 959 [2008] ; see People v. Lashway , 25 N.Y.3d 478, 484, 13 N.Y.S.3d 337, 34 N.E.3d 847 [2015] ). Here, the court granted a short adjournment after the People identified a material witness and demonstrated diligence and good faith for the request, and there was minimal prejudice to defendant based on the short adjournment (see generally People v. Singleton , 41 N.Y.2d 402, 406, 393 N.Y.S.2d 353, 361 N.E.2d 1003 [1977] ; People v. Schafer , 152 A.D.3d 1228, 1229, 57 N.Y.S.3d 875 [4th Dept. 2017], lv denied 30 N.Y.3d 1022, 70 N.Y.S.3d 455, 93 N.E.3d 1219 [2017] ).
Defendant failed to preserve for our review his contention that the court, in determining the sentence to be imposed, penalized him for exercising his right to a jury trial because the sentence imposed is longer than the pretrial plea offer (see People v. Hendricks , 214 A.D.3d 1466, 1467, 184 N.Y.S.3d 659 [4th Dept. 2023], lv dismissed 40 N.Y.3d 929, 192 N.Y.S.3d 518, 213 N.E.3d 660 [2023] ; People v. Tetro , 181 A.D.3d 1286, 1290, 119 N.Y.S.3d 788 [4th Dept. 2020], lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 388, 152 N.E.3d 1189 [2020] ), as well as his conclusory contention that the sentence constitutes cruel and unusual punishment (see People v. Pena , 28 N.Y.3d 727, 730, 49 N.Y.S.3d 342, 71 N.E.3d 930 [2017] ; People v. Suprunchik , 208 A.D.3d 1058, 1059, 172 N.Y.S.3d 781 [4th Dept. 2022] ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ; Suprunchik , 208 A.D.3d at 1059, 172 N.Y.S.3d 781 ; People v. Elmore , 195 A.D.3d 1575, 1577, 145 N.Y.S.3d 913 [4th Dept. 2021], lv denied 37 N.Y.3d 1026, 153 N.Y.S.3d 419, 175 N.E.3d 444 [2021] ). The sentence is not unduly harsh or severe. Finally, the certificate of conviction must be amended to reflect that defendant was sentenced as a second violent felony offender (see McKoy , 213 A.D.3d at 1270, 182 N.Y.S.3d 452 ).