| People v Hall |
| 2008 NY Slip Op 10066 [57 AD3d 1222] |
| December 24, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kevin D. Hall,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.), renderedJuly 11, 2007, upon a verdict convicting defendant of the crimes of burglary in the second degree,grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree.
The charges here arise out of three burglaries that occurred at three different locations betweenOctober 14 and October 16, 2006. There were no eyewitnesses to any of the burglaries. However,defendant was apprehended and arrested based upon an identification made by a local resident of thearea in which the burglaries occurred, together with certain evidence found on defendant's person.Specifically, at approximately 9:00 p.m. on October 16, 2006, Christopher McKenna and his wifewere sitting outside their home on Van Schoick Avenue in the City of Albany when they heard a noisecoming from their yard. Upon investigation of the noise, McKenna discovered defendant, whoappeared to be struggling to open a gate while handling a bicycle in order to exit McKenna's backyard.McKenna approached defendant to ask him what he was doing in his yard. After a conversationbetween McKenna and defendant, which lasted for several minutes, McKenna escorted defendant tothe end of his driveway and watched as defendant proceeded up the street towards New ScotlandAvenue. McKenna then called the [*2]police to report the incident.
Albany Police Officer Robert Paone arrived at McKenna's residence in response to the call, tookMcKenna's statement, called in a description of the man in McKenna's yard and proceeded to preparea criminal trespass report. While preparing the report, Paone received a call that an individual matchingPaone's initial broadcasted description had been apprehended. Paone brought McKenna to make ashowup identification a few blocks away. However, McKenna stated that the person apprehended bythe police was not the man he had previously encountered in his yard.
In the meantime, Albany Police Officer Salvatore Sturiale was on patrol in the nearby NewScotland Avenue and Pine Hills area when he heard the description that Paone had broadcast of aprowler at the McKenna residence. At approximately 11:00 p.m., Sturiale came upon defendant onNew Scotland Avenue, who was riding a bicycle and carrying several bags and cases. Believing thatdefendant matched the description of the prowler, Sturiale attempted to pull up alongside the bicycle tospeak to him. Defendant did not stop and turned right onto a driveway. When defendant began to run,Sturiale called for backup and began pursuing him on foot. Albany Police Officer Kyle McCraith andhis K9 were called in and they located defendant in a backyard on Grove Street, crouching betweentwo trash cans. Sturiale arrived on the scene and handcuffed defendant. In an attempt to identifydefendant, Sturiale patted him down and found a credit/debit card in his front pocket, bearing the nameof William Fenner Frye III. Several other items were recovered from the scene and later identified ashaving been stolen from the residences of Cheryl White, Patrick O'Keefe and Frye.
After defendant was apprehended, Paone returned to the McKenna residence and askedMcKenna to accompany him to Grove Street, which was approximately eight blocks away, for asecond showup. On the way to Grove Street, Paone informed McKenna that the police had capturedsomeone who could possibly be the man he had encountered earlier in his yard. When they arrived,McKenna was instructed to remain in the patrol car, while Paone exited the car. When Paone returned,he turned a spotlight on defendant, who had been brought out of another patrol car. McKennaimmediately identified defendant as the man he had encountered in his yard.
Defendant was thereafter indicted for three counts of burglary in the second degree, two counts ofgrand larceny in the fourth degree, one count of grand larceny in the third degree, and one count ofcriminal possession of stolen property in the fourth degree. Defendant moved to, among other things,suppress McKenna's showup identification as unduly suggestive. After a suppression hearing, CountyCourt denied defendant's motion, finding that, although the showup was suggestive, there was anindependent source for McKenna's prospective in-court identification of defendant. Following a trial,defendant was convicted of one count each of burglary in the second degree, grand larceny in the fourthdegree and criminal possession of stolen property in the fourth degree.[FN*]Defendant now appeals and we affirm.[*3]
First, we agree with County Court's determinations thatMcKenna's pretrial identification of defendant was unduly suggestive, but that there was an independentsource for McKenna's prospective in-court identification (see People v Adams, 53 NY2d 241,252 [1981]; People v West, 128 AD2d 570, 570-571 [1987], lv denied 70 NY2d658 [1987]). McKenna had a face-to-face conversation with defendant for several minutes duringwhich he carefully studied defendant to ensure that he was not in possession of his property, and hegave a description of defendant to the police shortly thereafter. His ability to accurately identifydefendant was further bolstered by the fact that he did not identify another individual as the personfound in his yard when called to an earlier showup. Thus, McKenna's in-court identification ofdefendant was clearly proper (see id.). Furthermore, since McKenna's identification ofdefendant did not bear directly on defendant's guilt and given the other evidence of his guilt, as well asthe vigorous cross-examination of McKenna with regard to the showup identification, any error inadmitting testimony regarding the showup identification was harmless (see People v Adams, 53NY2d at 252).
We further find that defendant's convictions are supported by legally sufficient evidence. Whenconsidering a challenge to the legal sufficiency of the evidence, we view the evidence in the light mostfavorable to the People (see People vBrown, 46 AD3d 949, 951 [2007], lv denied 10 NY3d 808 [2008]), and we will notdisturb the verdict if the evidence demonstrates a valid line of reasoning and permissible inferences thatcould lead a rational person to the conclusion reached by the jury (see People v Bleakley, 69NY2d 490, 495 [1987]).
With respect to defendant's conviction of burglary in the second degree, the People were requiredto prove that defendant knowingly entered or remained unlawfully in a dwelling with the intent tocommit a crime therein (see Penal Law § 140.25 [2]). Frye, who lives near the areawhere defendant was apprehended, testified at trial that he was away from his residence fromapproximately 6:00 a.m. to 9:15 or 9:30 p.m. on October 16, 2006—the same day thatdefendant was seen in McKenna's yard and later apprehended by police. Upon returning home thatevening, Frye immediately noticed that someone had been in his house and specifically observed that hisjewelry box—where his dog tags were normally kept—was missing, but, because he wastired, he decided to go to bed and investigate further the next day. At approximately 11:00 p.m., Fryewas awakened by a police officer at his door and learned that the police had recovered several itemsthat belonged to him, including his dog tags, cuff links, a leather box containing silverware, a maroonpillow case and a credit/debit card.
The evidence as to the circumstances surrounding defendant's apprehension is legally sufficient tosupport a finding that defendant committed burglary as charged in count 5 of the indictment.Specifically, defendant discarded the box of silverware on a driveway when Sturiale began chasing him,Frye's credit/debit card was retrieved from defendant's front pocket and the police found other items,including the cuff links and dog tags, either on defendant's person or in the maroon pillow case in hispossession at the time of his arrest. Given the proximity of defendant's activities that night to Frye'sresidence and the fact that he was found with Frye's property on the same night that it was discoveredto be missing, a reasonable inference could be drawn that defendant had burglarized Frye's home (see e.g. People v Mangual, 13 AD3d734, 736 [2004], lv denied 4 NY3d 800 [2005]; People v Potts, 197 AD2d801, 802 [1993], lv denied 82 NY2d 901 [1993]). Furthermore, the testimony of Sturiale thatdefendant was in possession of [*4]Frye's credit/debit card when hewas apprehended was legally sufficient evidence to support the conviction of grand larceny in the fourthdegree.
With regard to count seven, a person is guilty of criminal possession of stolen property when heknowingly possesses a stolen credit or debit card, with the intent to benefit himself or a person otherthan the owner thereof (see Penal Law § 165.45 [2]). A presumption that the defendantknew the card was stolen arises when such defendant is in possession of more than one stolencredit/debit card (see Penal Law § 165.55 [3]). Here, there was evidence thatdefendant was in possession of Frye's credit/debit card on the night that it was stolen from Frye'sresidence, as well as a credit card belonging to O'Keefe which had been stolen from O'Keefe'sresidence (compare People v Bogdonawicz, 59 AD2d 959 [1977]). Thus, viewing theevidence in a light most favorable to the People, we find that there existed a valid line of reasoning andpermissible inferences to support the conclusion reached by the jury as to defendant's guilt of thischarge.
We also reject defendant's contention that his convictions are against the weight of the evidence.While defendant denied that he had ever been at Frye's residence or stolen anything therefrom andtestified that he found the various items that were in his possession when he was scavenging throughtrash and that he was not aware that the cards were credit cards (compare People v Powers,262 AD2d 713, 715 [1999], lv denied 93 NY2d 1005 [1999]), the jury was free to rejectdefendant's testimony based on a determination of his credibility (see People v Mangual, 13AD3d at 736). Although, "based on all the credible evidence a different finding would not have beenunreasonable" (People v Bleakley, 69 NY2d at 495), viewing the evidence in a neutral lightand giving "appropriate deference to the jury's superior opportunity to assess the witnesses' credibility"(People v Gilliam, 36 AD3d 1151,1152-1153 [2007], lv denied 8 NY3d 946 [2007]; see People v Griffin, 26 AD3d 594, 596 [2006], lv denied 7NY3d 756 [2006]), we find that "the jury was justified in finding the defendant guilty beyond areasonable doubt" (People v Danielson,9 NY3d 342, 348 [2007]; see People vRomero, 7 NY3d 633, 636 [2006]; People v Bleakley, 69 NY2d at 495; People v Khuong Dinh Pham, 31 AD3d962, 964 [2006]).
We are also unpersuaded by defendant's contention that he was denied the effective assistance ofcounsel (see generally People v Caban, 5NY3d 143, 152 [2005]; People v Benevento, 91 NY2d 708, 712 [1998]). Defendantfailed to demonstrate that his counsel did not provide meaningful representation or an absence of"strategic or other legitimate explanation[ ]" for his failure to request a competency hearing (Peoplev Caban, 5 NY3d at 152 [internal quotation marks and citation omitted]). The recorddemonstrates that defendant's attorney made appropriate motions, objections and requests for hearingsand thoroughly cross-examined witnesses. Defendant's counsel was also successful in securingacquittals on counts one through four of the indictment.
To the extent that any further contentions have been raised, they are rejected.
Mercure, J.P., Spain, Carpinello and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: The charges of which defendant wasconvicted related to property stolen from Frye's residence on Linden Road on October 16, 2006. Thejury acquitted defendant of the four remaining counts of the indictment, which related to property stolenfrom the White and O'Keefe residences at other locations in Albany between October 14 and 15,2006.