| People v Bethune |
| 2009 NY Slip Op 06195 [65 AD3d 749] |
| August 13, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DwayneBethune, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered March 10, 2008, convicting defendant following a nonjury trial of the crimes ofburglary in the third degree and criminal possession of stolen property in the fifth degree.
In July 2007, a laptop was reported stolen from the administrative building of a cement plantin the Town of Coeymans, Albany County. Defendant was identified as a suspect after a plantemployee recognized him from surveillance footage as an employee of a cleaning company thatthe plant had formerly used. This footage, taken the day before the laptop was reported missing,showed him carrying two laptop cases in the building's third-floor office area. Police thereaftertook defendant into custody and accompanied him to a pawn shop in the City of Schenectady,Schenectady County, where a laptop was recovered.
Defendant was indicted on one count each of burglary in the third degree and criminalpossession of stolen property in the fourth degree. After a suppression hearing, County Courtfound that defendant had received inadequate Miranda warnings and suppressed thelaptop and defendant's related statements. He was convicted as charged following a bench trial.At sentencing, County Court reduced the criminal possession conviction to criminal possessionof stolen property in the fifth degree, holding that the People had not adequately demonstratedthe value of the stolen property that defendant allegedly possessed. Defendant was sentenced asa [*2]second felony offender to a prison term of 3½ to 7years on the burglary conviction and to a conditional discharge on the stolen property conviction.He now appeals.
Initially, defendant argues that the indictment should have been dismissed because it wasinstigated by an illegal arrest. He contends that the Coeymans police officers who arrested himlacked the authority to do so in Schenectady, lacked probable cause for the arrest, andadministered inadequate Miranda warnings. This claim is without merit. Contrary todefendant's contention, his Schenectady arrest was valid even though it did not take place in thejurisdiction where the arresting officers were employed (see CPL 140.10 [3]). Further,the officers did not lack probable cause for the arrest. The information they acquired during theirinvestigation, including the plant employee's recognition of defendant on the surveillancefootage, identifying information provided by defendant's employer and parole officer, and theofficers' separate identification of defendant as the person shown in the surveillance footage afterfinding him in the vehicle previously identified by their investigation as belonging to the suspect,was sufficient to support the reasonable belief that defendant had committed the offense theofficers were investigating (see Peoplev Shulman, 6 NY3d 1, 25-26 [2005], cert denied 547 US 1043 [2006]; People v Terry, 2 AD3d 977,978-979 [2003], lv denied 2 NY3d 746 [2004]). Defendant's further argument regardingprobable cause relative to an alleged discrepancy in computer serial numbers is based entirely onfacts outside the record and, as such, is incapable of review on direct appeal (see People vCarroll, 299 AD2d 572, 572-573 [2002], lv denied 99 NY2d 625, 626 [2003]).Finally, as to the adequacy of the Miranda warnings, defendant received the appropriaterelief when County Court suppressed the laptop and his related statements (see e.g. People v Baggett, 57 AD3d1093, 1095 [2008]; People vDurrin, 32 AD3d 665, 667-668 [2006]).
Next, defendant contends that the evidence with respect to his burglary conviction waslegally insufficient to prove that he "knowingly enter[ed] or remain[ed] unlawfully in a buildingwith intent to commit a crime therein" (Penal Law § 140.20; see generally People vGaines, 74 NY2d 358 [1989]). A person enters or remains unlawfully in a building "when he[or she] is not licensed or privileged to do so" (Penal Law § 140.00 [5]), an elementcapable of circumstantial proof (see Matter of Tyshawn J., 304 AD2d 331, 331 [2003]).Though the building's lobby was open to the public, the statute specifically provides that a"license or privilege to enter or remain in a building which is only partly open to the public is nota license or privilege to enter or remain in that part of the building which is not open to thepublic" (Penal Law § 140.00 [5]). Defendant was videographically recorded on the thirdfloor of the plant's administrative building, a level that contained cubicles and open records (see e.g. People v Harris, 19 AD3d171, 172 [2005], lv denied 5 NY3d 789 [2005]; People v Quinones, 18 AD3d 330, 330 [2005], lv denied 5NY3d 809 [2005]; People v Terry, 2 AD3d at 978). Such a "clearly . . .private area . . . was not open to the public" (People v Thomas, 38 AD3d 1134, 1135 [2007], lv denied 9NY3d 852 [2007]; see People v Powell, 58 NY2d 1009, 1010 [1983]; People v Daniels, 8 AD3d 1022,1022-1023 [2004], lv denied 3 NY3d 705 [2004]; People v Durecot, 224 AD2d264, 264-265 [1996], lv denied 88 NY2d 878 [1996]; People v Lloyd, 180 AD2d527, 527-528 [1992], lv denied 79 NY2d 1003 [1992]). Finally, defendant's claim that hehad entered the plant several days previously without objection does not demonstrate that he waslicensed to enter on either occasion or that he reasonably believed that he was licensed do so(compare People v Tennant, 285 AD2d 817, 818-819 [2001]; People v McCargo,226 AD2d 480, 480-481 [1996]; People v Uloth, 201 AD2d 926, 926-927 [1994]).County Court therefore properly determined that the evidence that defendant "knowinglyenter[ed] or remain[ed] unlawfully" in the plant was legally sufficient to support his burglaryconviction (Penal Law § 140.20; see generally People v Bleakley, 69 NY2d 490,495 [1987]). Moreover, upon the exercise of our factual review power, [*3]we are satisfied that the verdict is not against the weight of theevidence (see generally People vRomero, 7 NY3d 633 [2006]).
With respect to the stolen property conviction, the People were obligated to prove thatdefendant "knowingly possesse[d] stolen property, with intent to benefit himself or a personother than an owner thereof or to impede the recovery by an owner thereof" (Penal Law §165.40). Defendant contends that the evidence was legally insufficient to prove the element ofknowing possession. Circumstantial evidence may be relied upon relative to this element. "'Direct proof of culpable knowledge on the part of a defendant in a criminal possession of stolenproperty trial is rare' " (People v Lewis, 125 AD2d 918, 919 [1986], lv denied 69NY2d 882 [1987], quoting People v Sharland, 111 AD2d 479, 479 [1985]). There wastestimony in the record that defendant entered the administrative building carrying a singlelaptop case. The surveillance footage taken shortly thereafter showed him emerging with asecond laptop case from a third-floor office that he was not authorized to enter. As criminalpossession of stolen property in the fifth degree does not require proof of value (see People vBayusik, 192 AD2d 1073, 1074-1075 [1993], affd 83 NY2d 774 [1994]), defendant'svideotaped possession of a second laptop case that he had removed without authorization from aprivate office is legally sufficient to support the conclusion that he knowingly possessed stolenproperty, even without proof that the case actually contained a laptop (see e.g. People vBerni, 134 AD2d 436 [1987], lv denied 70 NY2d 952 [1988]; cf. People vSpann, 56 NY2d 469, 473 [1982]; People v Goodman, 156 AD2d 713, 714 [1989],lv denied 75 NY2d 919 [1990]; People v Barnes, 119 AD2d 828, 829 [1986],lv denied 68 NY2d 755 [1986]; see generally People v Bleakley, 69 NY2d at495). Moreover, upon the exercise of our factual review power, we are also satisfied that theverdict on this count is not against the weight of the evidence (see generally People vRomero, 7 NY3d at 633). Defendant's contention that the proof was inadequate to establishthe value of the stolen property was fully addressed by County Court's reduction of hisconviction to criminal possession of stolen property in the fifth degree (see People vBayusik, 192 AD2d at 1074-1075; People v Tucker, 165 AD2d 900, 901 [1990]).
Next, defendant argues that the indictment should have been dismissed because the People'sinstructions to the grand jury with respect to the elements of burglary were deficient. In definingthat element of burglary which requires that a defendant "enter[ ] or remain[ ] unlawfully" in abuilding (Penal Law § 140.20), the prosecutor read aloud to the grand jury the first part ofthe definition of that term in Penal Law § 140.00 (5), which provides that "[a] person'enters or remains unlawfully' in or upon premises when he is not licensed or privileged to doso." Defendant contends that the prosecutor should also have read the remainder of the statutorydefinition, which elaborates upon "license and privilege" as it applies to public places.
While a prosecutor must provide sufficient guidance to grand jurors to enable them tointelligently carry out their critical constitutional mission, grand jury instructions are not held tothe same rigorous standards as those given to petit jurors by trial judges (see People vGoetz, 68 NY2d 96, 115 [1986]; People v Valles, 62 NY2d 36, 38 [1984];People v Cannon, 210 AD2d 764, 766 [1994]; see generally CPL 190.25 [6])."[I]n the usual case, it is 'sufficient if the District Attorney provides the [g]rand [j]ury withenough information to enable it intelligently to decide whether a crime has been committed andto determine whether there exists legally sufficient evidence to establish the material elements ofthe crime' " (People v Valles, 62 NY2d at 38, quoting People v Calbud, Inc., 49NY2d 389, 394-395 [1980]). Where a term has an obvious meaning, the People need notnecessarily charge the grand jury in detail thereon (see People v Huntington, 57 AD3d 1238, 1239 [2008]; Peoplev Perez, 269 AD2d 321, 323 [2000], lv denied [*4]95NY2d 801 [2000]; People v Levens, 252 AD2d 665, 666-667 [1998], lv denied92 NY2d 927 [1998]; People v Rockwell, 97 AD2d 853, 854 [1983]). Contrary todefendant's argument, a reasonable grand juror would conclude from his or her personalexperience that it is not unlawful to enter a public place or to remain there unless one's "licenseor privilege" to do so has been revoked. The prosecutor was thus not required to deliver anexpanded instruction on this term.[FN*]County Court properly refused to dismiss the indictment on this ground.
We also reject defendant's Brady argument premised on the People's failure toprovide him with a copy of surveillance footage that showed him entering the plant three daysbefore the alleged burglary. Even assuming that the footage was exculpatory, discussions in therecord among County Court, the prosecutor, and defense counsel demonstrate that defendant"knew of . . . the evidence and its [allegedly] exculpatory nature" (People vDoshi, 93 NY2d 499, 506 [1999]; see United States v LeRoy, 687 F2d 610, 618-619[2d Cir 1982], cert denied 459 US 1174 [1983]). As such, the videotape was "notsuppressed by the prosecution and . . . accordingly, there was no Bradyviolation" (People v LaValle, 3NY3d 88, 110 [2004]; see Strickler v Greene, 527 US 263, 280-282 [1999]).
We have considered defendant's remaining contentions, including those in his pro sesupplemental brief. To the extent subject to review upon direct appeal, they are without merit.
Cardona, P.J., Rose, Kane and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Similarly, a challenge to theinstructional sufficiency of a burglary charge to a grand jury that merely tracked the statutorylanguage without any elaboration on the concept of "unlawful" entry has previously beenrejected (see People v Wade, 260 AD2d 946, 947-948 [1999]; see also People vScott, 175 AD2d 625, 626 [1991], lv denied 78 NY2d 1130 [1991]).