| People v Race |
| 2010 NY Slip Op 07827 [78 AD3d 1217] |
| November 4, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Glen Race,Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.), renderedJanuary 15, 2009, convicting defendant following a nonjury trial of the crimes of murder in the firstdegree, burglary in the first degree and grand larceny in the fourth degree (three counts).
During the early morning hours of May 11, 2007, the body of Darcy Manor was found lying on adirt road on the grounds of the Churubusco Lodge, a hunting camp in Clinton County where Manorworked as a part-time caretaker. He had been shot one time in the back. The victim's Ford pickuptruck was missing, and a .44 caliber Ruger rifle was missing from the camp. Four days later and morethan 2,000 miles away, a United States Border Patrol agent, responding to a sensor alert near LosIndios, Texas, encountered defendant walking down a road near the United States border with Mexicoat the Rio Grande River. When asked to produce a passport, defendant opened his duffel bag revealinga rifle. A scuffle then ensued, during which defendant attempted to grab the officer's sidearm and bithim. Defendant was eventually subdued and taken into custody. A subsequent computer check of therifle by the Border Patrol revealed that it had been reported stolen from the murder scene in NewYork.
In August 2007, defendant was indicted and charged with murder in the first degree, murder in thesecond degree, robbery in the first degree, three counts of grand larceny in the fourth degree andburglary in the third degree. In a subsequent indictment dated February 2008, [*2]defendant was indicted and charged with four counts of murder in the firstdegree, two counts of burglary in the first degree, two counts of grand larceny in the fourth degree, twocounts of burglary in the second degree and criminal use of a firearm in the first and second degrees.After the two indictments were consolidated, one count was dismissed and, during the bench trial, sixother counts were dismissed. Ultimately, County Court found defendant guilty of burglary in the firstdegree, murder in the first degree and three counts of grand larceny in the fourth degree.[FN*]He was thereafter sentenced to, among other things, life in prison without parole. Defendant nowappeals.
Initially, we are not persuaded that County Court erred in denying defendant's request to proceedpro se, made both on the second day of trial and after the People completed their direct case. Once atrial has commenced, a defendant's right to invoke the right to represent himself or herself is "severelyconstricted and will be granted in the trial court's discretion and only in compelling circumstances"(People v McIntyre, 36 NY2d 10, 17 [1974]). In this case, defendant's application to proceedpro se was untimely, having been made after the trial commenced (see People v Morales, 12 AD3d 1126, 1126 [2004], lv denied4 NY3d 746 [2004]; People v Jordan, 209 AD2d 544 [1994], lv denied 85 NY2d973 [1995]). In addition, his complaints regarding defense counsel's performance, including hisdisagreement with the scope of counsel's cross-examination and his contention that the withdrawal of apsychiatric defense was improper—even though there was no expert testimony to beintroduced—do not establish compelling circumstances necessary to invoke his right to proceedpro se (see People v Jones, 277 AD2d 1 [2000], lv denied 96 NY2d 760 [2001]).
We note that, based on defendant's failure to renew his motion to dismiss for lack of legalsufficiency after the close of his proof, defendant's contention regarding the legal sufficiency of theevidence is unpreserved for appellate review (see People v Kolupa, 13 NY3d 786, 787 [2009]; People v Garrow, 75 AD3d 849, 850[2010]). However, since defendant also argues that the verdict was against the weight of the evidence,which does not require preservation (seePeople v Hebert, 68 AD3d 1530, 1531 [2009], lv denied 14 NY3d 841 [2010]),"we will consider the evidence adduced as to each of the elements of the challenged crimes in thecontext of that review" (People v Vargas,72 AD3d 1114, 1116 [2010], lv denied 15 NY3d 758 [2010]).
With respect to the charge of murder in the first degree, the People were obligated to prove thatdefendant intentionally killed another while in the course of committing burglary in the first degree(see Penal Law § 125.27 [1] [a] [vii]). With respect to the charge of burglary in the firstdegree, the People were obligated to prove that defendant knowingly entered or unlawfully remained"in a dwelling with intent to commit a crime therein, and when, in effecting entry or while in the dwellingor in immediate flight therefrom," he was armed with an explosive or deadly weapon (Penal Law§ 140.30 [1]). Finally, with respect to the three counts of grand larceny in the fourth degree, thePeople were obligated to prove that defendant stole a credit card or debit card (see Penal Law§ 155.30 [4]), a firearm, rifle or shotgun (see Penal Law § 155.30 [7]), and amotor vehicle valued at more than $100 (see Penal Law § 155.30 [8]). Because a [*3]different verdict on each of the five charges in this case would not havebeen unreasonable, we must "weigh the relative probative force of conflicting testimony and the relativestrength of conflicting inferences that may be drawn from the testimony" (People v Bleakley, 69NY2d 490, 495 [1987] [internal quotation marks and citations omitted]; see People v Sanchez, 75 AD3d 911,913 [2010]; People v Greenwood, 24AD3d 818, 818 [2005], lv denied 6 NY3d 813 [2006]). Although the appellate courtmust review the evidence in a neutral light (see People v Rolle, 72 AD3d 1393, 1396 [2010]), "[g]reat deference isaccorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observedemeanor" (People v Bleakley, 69 NY2d at 495). And, as relevant here, "the appropriatestandard for evaluating a weight of the evidence argument on appeal is the same regardless of whetherthe finder of fact was a judge or a jury" (People v Lane, 7 NY3d 888, 890 [2006]).
The trial testimony established that the victim spoke with his wife by telephone at approximately4:00 p.m. on May 10, 2007, and he told her that, on his way home from his regular job, he was goingto stop by the hunting camp to work on the water pump. At approximately 4:30 p.m., two arearesidents observed defendant on a road, one quarter of a mile from the camp, walking in its direction.At approximately 6:15 p.m., a third resident observed the victim's pickup truck driving away from thecamp at a speed faster than normal. When the victim had not arrived home by 6:30 p.m. as expected,his wife and their two children drove to the camp's gate but found it locked, with no sign of the victim orhis truck. At approximately 8:00 p.m., when the victim still had not returned home, his wife calledseveral friends who initiated a search of the camp's grounds. Shortly after midnight, the victim's bodywas discovered lying on an interior dirt road approximately 1,000 feet from the camp. The body had asingle gunshot wound to the back and was tied with rope and plastic tubing as if it had been dragged.During an autopsy of the victim's body, which revealed the cause of death to be a gunshot to the thorax,a bullet fragment was recovered and turned over to the State Police. A search by the State Police thenext morning found one of the camp's kitchen windows broken from the inside out, and bloodstains andtools on the ground next to the water pump, which was approximately 30 to 40 feet from the brokenwindow. A later trajectory comparison between the broken window and the blood-stained ground wasconsistent with a gun having been fired by a shooter from inside the camp through that window to thelocation of the camp's water pump. When the camp owner came to the scene after the murder, hereported to the police that his Ruger .44 caliber rifle, along with ammunition, was missing.
The victim's Ford pickup truck was found abandoned with a flat tire approximately three milesfrom Baytown, Texas on May 15, 2007. While bearing a stolen Texas license plate on its rear bumper,plates from three other states were found in and under the truck's rear tool box—one fromLouisiana, one from South Dakota, and the original New York license plates issued to the victim. Alsofound inside the truck was, among other things, defendant's latent fingerprints and clothing and plasticjuice bottles that contained defendant's DNA. A surveillance videotape from a convenience storedepicted defendant and the victim's truck at Sabine Pass, Texas on May 13, 2007. A truck stop clerkidentified defendant as being the person who, on May 14, 2007, purchased a bus ticket from Baytown,Texas for travel south to Brownsville, Texas. On May 15, 2007, defendant was seen in Harlingen,Texas where he took a taxi south to Los Indios, Texas and changed some dollars to pesos. When theBorder Patrol searched defendant after his arrest on May 15, 2007, he was discovered to be inpossession of the rifle and a credit card in the name of the victim. The rifle seized from defendant wasturned over to the State Police and returned to New York where it was test fired at the New YorkState Forensic Investigation Center. Microscopic comparison of the resulting test projectile with thebullet fragment retrieved from [*4]the victim's body revealed that bothwere fired from the same gun. At trial, the camp owner confirmed that the rifle seized from defendantwas, in fact, the rifle owned by him, stored at the camp and missing after the murder. Finally, the Peoplepresented expert testimony that the value of the victim's truck was approximately $2,000.
In evaluating this evidence in a neutral light (see People v Rolle, 72 AD3d at 1396) anddespite the testimony of one area resident that at approximately 6:15 p.m. on May 10, 2007 sheobserved two unidentified individuals in the victim's truck drive by her residence traveling away from thecamp, and according appropriate deference to County Court's assessment of witness credibility(see People v Bleakley, 69 NY2d at 495), we find that the verdict on all counts is not againstthe weight of the evidence. In addition, according the factfinder the appropriate deference (seePeople v Mateo, 2 NY3d 383, 410 [2004]), we are unpersuaded that County Court, the trier offact, failed to give the evidence the weight it should have been accorded.
Finally, we are unpersuaded that defendant was denied the effective assistance of counsel. Therecord reflects that counsel made appropriate motions and clear opening and closing statements,effectively cross-examined witnesses, made appropriate objections and successfully moved to havecertain charges of the indictments dismissed, such that defendant was afforded meaningfulrepresentation (see generally People vMcDaniel, 13 NY3d 751, 752 [2009]; People v Benevento, 91 NY2d 708, 713[1998]; People v Baldi, 54 NY2d 137, 146-147 [1981]; People v Blanchard, 63 AD3d 1291, 1292 [2009], lv denied 13NY3d 794 [2009]; People v Long, 307 AD2d 647, 648-649 [2003]).
Peters, J.P., Spain, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: In rendering its determination,County Court noted that in finding defendant guilty of both murder in the first degree and burglary in thefirst degree, the lesser included offenses charged need not be considered.