Opinion
110161
12-27-2018
The PEOPLE of the State of New York, Respondent, v. Latif SHAMSUDDIN, Appellant.
Hug Law, PLLC, Albany (Matthew C. Hug of counsel), for appellant. P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Hug Law, PLLC, Albany (Matthew C. Hug of counsel), for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Before: Garry, P.J., McCarthy, Egan Jr., Devine and Clark, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.
Appeal from a judgment of the County Court of Albany County (Carter, J.), rendered September 1, 2017, upon a verdict convicting defendant of the crime of burglary in the second degree.
In September 2016, defendant was charged in an indictment with burglary in the second degree after he entered a guest room at the Hilton Hotel in the City of Albany and stole a guitar. Following a jury trial, defendant was convicted as charged and was thereafter sentenced, as a second felony offender, to a prison term of 11 years to be followed by five years of postrelease supervision. Defendant now appeals.
Defendant initially contends that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence. Specifically, defendant argues that the People failed to establish that he had the requisite intent to commit a crime at the time that he entered the victim's hotel room. When reviewing a legal sufficiency claim, "we must determine whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to conclude that each and every element of the charged crime had been proven beyond a reasonable doubt" ( People v. Pierce, 106 A.D.3d 1198, 1199, 964 N.Y.S.2d 307 [2013] ; see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). As relevant here, "[a] person is guilty of burglary in the second degree when he [or she] knowingly enters ... unlawfully [a dwelling] with intent to commit a crime therein" ( Penal Law § 140.25[2] ). Notably, a defendant's "[i]ntent may be inferred from the circumstances of [his or her] unlawful entry, unexplained presence on the premises, and actions and statements when confronted by police or the property owner" ( People v. Briggs, 129 A.D.3d 1201, 1203, 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] ; see People v. Jackson, 151 A.D.3d 1466, 1467–1468, 58 N.Y.S.3d 218 [2017], lv denied 30 N.Y.3d 950, 67 N.Y.S.3d 134, 89 N.E.3d 524 [2017] ; People v. Peterson, 118 A.D.3d 1151, 1152, 988 N.Y.S.2d 271 [2014], lvs denied 24 N.Y.3d 1087, 1 N.Y.S.3d 14, 25 N.E.3d 351 [2014] ).
The manner in which the subject indictment was drafted specifically limited the allegation of burglary in the second degree to whether defendant "knowingly enter[ed] unlawfully" room 410 of the subject hotel.
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The evidence introduced at trial established that, on August 15, 2016, defendant, then homeless, estranged from his spouse and using crack cocaine, walked into the Hilton Hotel and took an elevator to the fourth floor. After finding the door to room 410 ajar, defendant entered, only to encounter a member of the hotel's housekeeping staff cleaning the room. After explaining to the housekeeper that he needed to use the bathroom, the housekeeper indicated that he could and left. While inside the room, defendant spotted a Gibson guitar belonging to the room's occupant, picked it up and left the hotel. Defendant walked to a nearby tattoo shop and sold the guitar to an employee for $45. Later that day, the buyer grew suspicious that the purchase was "too good to be true" and went to visit a friend who owned a guitar shop. After being advised that the instrument was a genuine Gibson guitar worth at least $1,500, the buyer contacted the police. Defendant was thereafter arrested.
Defendant, who testified at trial, readily admits that he stole the guitar in question, but contends that he is not guilty of the crime of burglary in the second degree because his decision to steal the guitar was not made until after he had entered room 410. According to him, he entered the hotel, not with the intent to steal but hoping to encounter his estranged wife, who worked in an adjoining office building. According to defendant, he stepped into the elevator intending to go down, but another occupant had already pushed the button to go up, so he remained on the elevator and got off with everyone else on the fourth floor. He then realized he needed to use the bathroom, saw a guest room with an open door and asked the housekeeper in that room if he could use the room's bathroom; after he did, he saw the guitar as he was leaving and, on the spur of the moment, decided to steal it. According to defendant, his intent to steal formed only after his entry into room 410 and, therefore, he cannot be guilty of burglary in the second degree.
Viewing the evidence in a light most favorable to the People, we find that there was legally sufficient evidence presented from which a rational jury could infer, beyond a reasonable doubt, that defendant entered the subject hotel room with the requisite intent to commit a crime (see People v. Castillo, 47 N.Y.2d 270, 277–278, 417 N.Y.S.2d 915, 391 N.E.2d 997 [1979] ; People v. Gilligan, 42 N.Y.2d 969, 969, 398 N.Y.S.2d 269, 367 N.E.2d 867 [1977] ; People v. Carter, 50 A.D.3d 1318, 1320, 856 N.Y.S.2d 270 [2008], lv denied 10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447 [2008] ). Moreover, although a different verdict would not have been unreasonable, viewing the evidence in a neutral light, and giving deference to the jury's interpretation of the evidence and the rational inferences to be drawn therefrom, we are satisfied that defendant's conviction was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ; People v. Mesko, 150 A.D.3d 1412, 1413–1414, 55 N.Y.S.3d 748 [2017], lv denied 29 N.Y.3d 1131, 64 N.Y.S.3d 681, 86 N.E.3d 573 [2017] ; People v. Judware, 75 A.D.3d 841, 845, 906 N.Y.S.2d 139 [2010], lv denied 15 N.Y.3d 853, 909 N.Y.S.2d 30, 935 N.E.2d 822 [2010] ; People v. Thornton, 4 AD3d 561, 563, 771 N.Y.S.2d 597 [2004], lv denied 2 N.Y.3d 808, 781 N.Y.S.2d 307, 814 N.E.2d 479 [2004] ).
We find unpersuasive defendant's contention that he was deprived of a fair trial as a result of certain comments made by the prosecutor during summation. "In determining whether a reversal is warranted on this ground, we must assess the severity and frequency of the conduct, whether the trial court took appropriate action to dilute the effect of the conduct and whether, from a review of the evidence, it can be said that the result would have been the same absent such conduct" ( People v. Hartle, 159 A.D.3d 1149, 1153, 72 N.Y.S.3d 639 [2018] [internal quotation marks and citations omitted], lv denied 31 N.Y.3d 1082, 79 N.Y.S.3d 104, 103 N.E.3d 1251 [2018] ). Notably, "not every improper comment made by the prosecuting attorney during the course of closing arguments warrants reversal of the underlying conviction" ( People v. Forbes, 111 A.D.3d 1154, 1160, 975 N.Y.S.2d 490 [2013] ). Here, although the prosecutor made certain comments during his summation regarding defendant's failure to provide corroboration of the fact that his wife actually worked in the building adjacent to the Hilton Hotel, said comments did not serve to shift the burden of proof (see People v. Tout–Puissant, 155 A.D.3d 654, 655, 63 N.Y.S.3d 507 [2017], lvs denied 30 N.Y.3d 1120, 77 N.Y.S.3d 345, 101 N.E.3d 986 [2018]; People v. Gaston, 135 A.D.3d 575, 576, 23 N.Y.S.3d 232 [2016], lv denied 28 N.Y.3d 929, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ; People v. Youmans, 292 A.D.2d 647, 648, 738 N.Y.S.2d 756 [2002], lv denied 98 N.Y.2d 704, 747 N.Y.S.2d 423, 776 N.E.2d 12 [2002] ). The remaining allegedly improper comments by the prosecutor were either sustained by County Court, constituted a fair comment on the evidence or were otherwise responsive to defense counsel's summation, questioning the credibility of the People's witnesses (see People v. Williams, 163 A.D.3d 1160, 1165, 80 N.Y.S.3d 547 [2018] ; People v. Harris, 162 A.D.3d 1240, 1243, 79 N.Y.S.3d 336 [2018], lv denied 32 N.Y.3d 937, 84 N.Y.S.3d 864, 109 N.E.3d 1164 [2018] ), such that "the record as a whole fails to disclose that the prosecutor engaged in a flagrant and pervasive pattern of prosecutorial misconduct so as to deprive defendant of a fair trial" ( People v. Devictor–Lopez, 155 A.D.3d 1434, 1437, 66 N.Y.S.3d 346 [2017] [internal quotation marks and citations omitted] ). Moreover, County Court subsequently instructed the jury that the People maintained the burden of establishing defendant's guilt beyond a reasonable doubt. Given the overwhelming proof of defendant's guilt, the cumulative effect of the challenged comments was not so prejudicial as to deny defendant his fundamental right to a fair trial, and we cannot say that the jury would not have convicted defendant but for the prosecutor's comments (see People v. Harris, 162 A.D.3d at 1243, 79 N.Y.S.3d 336 ; People v. Ressy, 141 A.D.3d 839, 843, 35 N.Y.S.3d 762 [2016], lvs denied 28 N.Y.3d 1030, 45 N.Y.S.3d 382, 68 N.E.3d 111 [2016]; People v. Robinson, 16 A.D.3d 768, 770, 790 N.Y.S.2d 586 [2005], lv denied 4 N.Y.3d 856, 797 N.Y.S.2d 430, 830 N.E.2d 329 [2005] ; compare People v. Rupnarine, 140 A.D.3d 1204, 1205, 33 N.Y.S.3d 494 [2016] ; People v. Casanova, 119 A.D.3d 976, 977–979, 988 N.Y.S.2d 713 [2014] ).
Lastly, although cognizant of defendant's apparent substance abuse issues, we note that County Court expressly took this factor into consideration in electing not to mete out the maximum sentence allowable by law. Moreover, given defendant's lengthy criminal history, which includes, among other offenses, four prior burglary convictions, we find no abuse of discretion or extraordinary circumstances that warrant a reduction of defendant's sentence in the interest of justice (see People v. Cole, 162 A.D.3d 1219, 1224, 78 N.Y.S.3d 783 [2018], lv denied 32 N.Y.3d 1002, 86 N.Y.S.3d 761, 111 N.E.3d 1117 [2018] ; People v. Williams, 156 A.D.3d 1224, 1231, 69 N.Y.S.3d 367 [2017], lv denied 31 N.Y.3d 1018, 78 N.Y.S.3d 288, 102 N.E.3d 1069 [2018] ).
ORDERED that the judgment is affirmed.
Garry, P.J., McCarthy, Devine and Clark, JJ., concur.