Opinion
01-22-2015
The PEOPLE of the State of New York, v. Paul W. TURCOTTE, Appellant.
Mark Schneider, Plattsburgh, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), for respondent.
Mark Schneider, Plattsburgh, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, GARRY, ROSE and EGAN JR., JJ.
Opinion
LAHTINEN, J.Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered April 24, 2013, upon a verdict convicting defendant of the crimes of criminal possession of stolen property in the fourth degree, criminal possession of stolen property in the fifth degree (three counts) and conspiracy in the fifth degree.
On April 16, 2012, a large amount of copper wire valued at $14,000 was stolen from a private contractor who was doing work at the United States Border Patrol facility in Highgate, Vermont. Thereafter, defendant and Bradley Robtoy, Vermont residents, traveled on April 18 and 24, 2012 to Clinton County, where they sold significant quantities of scrap copper to two separate businesses on each day. Investigations in Vermont and Clinton County led police to defendant and Robtoy. Defendant was eventually indicted on one felony and one misdemeanor count of possessing stolen property arising from his activities on April 18, 2012, two misdemeanor counts of possessing stolen property regarding April 24, 2012, and one misdemeanor count of conspiracy. A jury convicted defendant on all five counts. County Court sentenced him as a second felony offender to 2 to 4 years in prison on the felony count of criminal possession of stolen property in the fourth degree and one-year sentences on each of the four misdemeanors—three counts of criminal possession of stolen property in the fifth degree and one count of conspiracy in the fifth degree—all sentences to run concurrently. Defendant appeals.
The verdict was supported by legally sufficient evidence. Criminal possession of stolen property in the fifth degree is established by proving that defendant knowingly possessed stolen property and he intended to use it to benefit himself or another who was not the owner (see Penal Law § 165.40 ), and criminal possession of stolen property in the fourth degree adds the relevant element that the stolen property had a value in excess of $1,000 (see Penal Law § 165.45[1] ). The conspiracy count required proof that defendant agreed with one or more persons to engage in or perform a felony (see Penal Law § 105.05[1] ), with the relevant felony being the criminal possession of stolen property in the fourth degree.
Here, the People's proof included, among other things, that tire tracks matching Robtoy's van were discovered where the copper wire was stolen in Vermont. Patrick Paquette, who rode with defendant and Robtoy during their April 18, 2012 trip to Clinton County, testified that he observed a large amount of copper in Robtoy's van and that he helped defendant and Robtoy scrap the copper in Clinton County. Paquette recalled that, during their travels that day, Robtoy stated that the copper came from a government job site, Robtoy warned Paquette to keep quiet about the copper, and defendant assured Robtoy that Paquette was “not a rat.” Receipts from that day reflect that over $1,700 was received for the scrapped copper. The job supervisor from where the wire was stolen stated that an unusual type of copper wire had been required by the government contract, and he identified the wire that defendant and Robtoy had sold in Clinton County as matching the stolen wire. The wire sold during the April 24, 2012 trip had been burned to remove identifying insulation. Vermont police discovered a burn pit at Robtoy's residence as well as copper wire that was the same as what had been stolen from the Highgate job site.
Although defendant acknowledged to police and testified at trial that he accompanied Robtoy, he claimed not to have known that the copper wire had been stolen. Given the People's proof, this created a credibility issue for the jury. Viewed in the light most favorable to the People, the proof provided “ ‘a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime[s] proved beyond a reasonable doubt’ ” (People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007], quoting People v. Acosta, 80 N.Y.2d 665, 672, 593 N.Y.S.2d 978, 609 N.E.2d 518 [1993] ). Moreover, to the extent that defendant argues that the verdict is against the weight of the evidence, our independent weighing and considering of the evidence, while according deference to the jury's credibility determinations, reveals that such argument is unpersuasive (see People v. Romero, 7 N.Y.3d 633, 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ).
Defendant contends that it was error to deny his motion for a mistrial made after a Vermont police officer made a brief reference to the fact that defendant had been arrested in Vermont for the April 16, 2012 burglary. “[T]he decision to grant or deny a motion for a mistrial is within the trial court's discretion” (People v. Wilson, 78 A.D.3d 1213, 1214, 910 N.Y.S.2d 276 [2010], lv. denied 16 N.Y.3d 747, 917 N.Y.S.2d 628, 942 N.E.2d 1053 [2011] [internal quotation marks and citation omitted] ). County Court had ruled in a pretrial Molineux motion that various evidence and conduct by defendant and Robtoy relating to the April 16 theft of copper wire could be introduced. The ruling did not, however, directly address the fact that defendant had been arrested in Vermont for the burglary. Nonetheless, after defendant objected, the People withdrew the question and County Court immediately instructed the jury to disregard any reference to the Vermont arrest. Under the circumstances, defendant was not deprived of a fair trial and County Court did not abuse its discretion in denying the request for a mistrial (see People v. Redmon, 81 A.D.3d 752, 752–753, 917 N.Y.S.2d 229 [2011], lv. denied 16 N.Y.3d 862, 923 N.Y.S.2d 424, 947 N.E.2d 1203 [2011] ; People v. Walker, 225 A.D.2d 507, 507, 640 N.Y.S.2d 36 [1996], lv. denied 88 N.Y.2d 887, 645 N.Y.S.2d 462, 668 N.E.2d 433 [1996] ).
The remaining arguments do not require extended discussion. Defendant's assertion that two of the misdemeanor counts (counts 3 and 4), for which he received concurrent sentences, are multiplicitous was not preserved for review and we decline to exercise our interest of justice jurisdiction as to such issue (see People v. Thompson, 34 A.D.3d 931, 932, 823 N.Y.S.2d 602 [2006], lv. denied 7 N.Y.3d 929, 827 N.Y.S.2d 698, 860 N.E.2d 1000 [2006] ; People v. Morey, 224 A.D.2d 730, 731, 637 N.Y.S.2d 500 [1996], lv. denied 87 N.Y.2d 1022, 644 N.Y.S.2d 156, 666 N.E.2d 1070 [1996] ; see also People v. Slishevsky, 97 A.D.3d 1148, 1151, 948 N.Y.S.2d 497 [2012], lv. denied 20 N.Y.3d 1015, 960 N.Y.S.2d 358, 984 N.E.2d 333 [2013] ). Contrary to defendant's contention, County Court did not prevent defense counsel from making a full summation. The court acted within its discretion when it directed counsel near the end of counsel's lengthy closing argument to stop being repetitive and, in fact, the record confirms that counsel had become repetitive (see generally Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 45 L.Ed.2d 593 [1975] ; People v. Borukhova, 89 A.D.3d 194, 224, 931 N.Y.S.2d 349 [2011], lv. denied 18 N.Y.3d 881, 939 N.Y.S.2d 751, 963 N.E.2d 128 [2012] ). With regard to the propriety of some of the People's comments during summation, defendant did not preserve this issue (see People v. Jordan, 99 A.D.3d 1109, 1110, 952 N.Y.S.2d 313 [2012], lv. denied 20 N.Y.3d 1012, 960 N.Y.S.2d 355, 984 N.E.2d 330 [2013] ; People v. Head, 90 A.D.3d 1157, 1158, 933 N.Y.S.2d 774 [2011] ) and, in any event, “the challenged conduct ‘was not so egregious or pervasive as to deprive defendant of a fair trial’ ” (People v. Reichel, 110 A.D.3d 1356, 1364, 975 N.Y.S.2d 470 [2013], lv. denied 22 N.Y.3d 1090, 981 N.Y.S.2d 675, 4 N.E.3d 977 [2014], quoting People v. Muniz, 93 A.D.3d 871, 876, 939 N.Y.S.2d 181 [2012], lv. denied 19 N.Y.3d 965, 950 N.Y.S.2d 117, 973 N.E.2d 215 [2012] ).
ORDERED that the judgment is affirmed.
PETERS, P.J., GARRY, ROSE and EGAN JR., JJ., concur.