| People v Wilbur |
| 2013 NY Slip Op 05248 [108 AD3d 878] |
| July 11, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v EarlM. Wilbur, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Peter N. DeLucia of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Broome County (Smith,J.), rendered June 30, 2011, convicting defendant following a nonjury trial of the crimeof burglary in the second degree.
On the afternoon of June 19, 2010, the victim, her children and her brother left thevictim's apartment at 21 Frederick Street in the City of Binghamton, Broome County toattend a family barbeque at a local park. Prior to leaving for the park, the victim's brotherborrowed a cooking grill from defendant, who was the victim's upstairs neighbor. Uponreturning to her apartment later that evening, the victim discovered that the plexiglasswindow of her back door was shattered and her two flat screentelevisions—measuring 19 and 22 inches—were missing. In response to thevictim's inquiry, defendant, who was sitting outside by the entrance to his apartment,denied hearing any commotion or having any knowledge of the intrusion.
Two days later, Robert Seeley, who did repair work for the owner of 21 FrederickStreet, informed the local police that defendant was "bragging about" breaking into thevictim's apartment. According to Seeley, defendant admitted that he used a piece of woodto smash the window on the back door of the apartment and thereafter stole the victim'stwo flat screen televisions, which defendant then secreted in an old carriage houselocated to the rear of the property. Defendant also showed Seeley the televisions inquestion, which Seeley described as[*2]"[t]wo small,maybe 17, maybe 19-inch flat screen TVs." As a result, defendant was indicted andcharged with burglary in the second degree. Following a nonjury trial, defendant wasconvicted as charged and thereafter was sentenced to five years in prison followed byfive years of postrelease supervision. This appeal ensued.
Defendant initially contends that his conviction is not supported by legally sufficientevidence—specifically, that the People failed to adequately corroborate hisstatements to Seeley (see CPL 60.50). We disagree. While it is true thatdefendant cannot be convicted solely upon the basis of his admissions to Seeley (asembodied in a voice mail that defendant left Seeley on the evening of theburglary[FN1]and their face-to-face conversation the following morning), the corroborationrequirement set forth in CPL 60.50 "merely requires some proof, of whatever weight,that a crime was committed by someone" (People v McGee, 20 NY3d 513, 517 [2013] [internalquotation marks and citation omitted]; see People v Lapi, 105 AD3d 1084, 1086 [2013]; People v Flemming, 101 AD3d1483, 1485 [2012], lv denied 21 NY3d 942 [2013]; People v Baltes, 75 AD3d656, 659 [2010], lv denied 15 NY3d 918 [2010]). Such additional proof,which "need not establish guilt or every detail of the crime or confession" (People v Johnson, 79 AD3d1264, 1266 [2010], lv denied 16 NY3d 832 [2011]), "may be found in thepresence of defendant at the scene of the crime, his guilty appearance afterward, or othercircumstances supporting an inference of guilt" (People v Baltes, 75 AD3d at659 [internal quotation marks and citation omitted]; see People v Flemming, 101AD3d at 1485).
Here, there was ample evidence that someone had committed the crime of burglary inthe second degree (see Penal Law § 140.25 [2]). The testimony of both thevictim and the police officer who responded to the scene established that someone hadentered the victim's residence (after shattering the window in the back door) and that thevictim's two flat screen televisions were removed from the premises. The victim testifiedthat she had not given anyone, including defendant, permission to enter or removeproperty from the residence and described, in detail, the missing electronics. As for theidentity of the perpetrator, we are satisfied that defendant's admissions were sufficientlycorroborated by, among other things, his documented presence at the scene both beforeand after the burglary,[FN2]Seeley's testimony describing the televisions he saw in the carriage house on the dayfollowing the burglary and defendant's trial testimony that he was "[m]ore or less"desperate for money at the time of the burglary. Accordingly, viewing the evidence in thelight most favorable to the People (see People v Baltes, 75 AD3d at 658), we aresatisfied that defendant's conviction is supported by legally sufficient evidence.
Defendant's remaining arguments do not merit extended discussion. To the extentthat defendant now takes issue with the unconventional order of the proof at his benchtrial, we note [*3]that defendant acquiesced to suchprocedure and, therefore, cannot now be heard to complain (see CPL 470.05 [2];cf. People v Rhodes, 91AD3d 1185, 1187 [2012], lv denied 19 NY3d 966 [2012]). Nor are wepersuaded that counsel's alleged error in this regard constituted ineffective assistance ofcounsel, as the record reflects that defense counsel otherwise made appropriateobjections and motions, vigorously cross-examined and attempted to impeach thePeople's witnesses, presented a viable—albeit unsuccessful—defense andoffered an intelligent and articulate closing argument. Accordingly, upon viewing thetotality of the record, we are satisfied that defendant received meaningful representation(see People v McRobbie, 97AD3d 970, 972 [2012], lv denied 20 NY3d 934 [2012]; People v Fisher, 89 AD3d1135, 1139 [2011], lv denied 18 NY3d 883 [2012]). Finally, we do not findthe sentence imposed to be harsh or excessive.
Lahtinen, J.P., Spain and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: A transcript of thisvoice mail depicts defendant ranting about "screens" and "thousands of dollars of s. . ." and imploring Seeley to help him, stating, "Get the f . . .over [here] and get this outta here man 'cause I'm gonna be in a whole lotta trouble if Idon't get rid of this."
Footnote 2: Additionally, as thevictim's brother borrowed the grill from defendant shortly before leaving for the park, thefactfinder reasonably could have inferred that defendant was aware of the victim's whereaboutson the night in question.