| People v Fauntleroy |
| 2013 NY Slip Op 05254 [108 AD3d 885] |
| July 11, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AveryFauntleroy, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Lamont, J.), renderedJune 10, 2011 in Albany County, upon a verdict convicting defendant of the crime ofcriminal possession of stolen property in the third degree.
In August 2010, and while in the course of responding to another call for service,police officer Gregory Mulligan observed a white Subaru Impreza traveling in the wrongdirection on Catherine Street in the City of Albany. As Mulligan approached the vehicleon foot, the vehicle—operated by defendant—stopped quickly and thenaccelerated, striking a parked car. Defendant exited the vehicle and, ignoring Mulligan'sdirective, walked away from the scene with increasing speed. Mulligan gave chase,during the course of which defendant threw the keys to the Subaru into the street.
After defendant was apprehended and detained, a routine check revealed that theSubaru was stolen. Fellow police officer Gary Tucker, who was dispatched to back upMulligan, observed that the right rear passenger door of the vehicle "was held closed by arope" and that the [*2]surrounding window had been"smashed out."[FN*]Defendant was unable to produce photo identification, a driver's license or a vehicleregistration and, when asked by Tucker to provide certain pedigree information,defendant indicated that his name was "Avery Leroy." According to Tucker, defendantstated that he had obtained the car from "a friend" he encountered at a local festival andthat this friend, in turn, had told defendant "to take it for a ride." Defendant could notidentify this friend, nor did he know where this friend had obtained the vehicle in thefirst instance.
Defendant thereafter was indicted and charged with criminal possession of stolenproperty in the third degree. Following a jury trial, defendant was convicted as chargedand was sentenced, as a second felony offender, to a prison term of 3 to 6 years. Thisappeal by defendant ensued.
Defendant initially contends that the verdict is against the weight of the evidence.We disagree. "A person is guilty of criminal possession of stolen property in the thirddegree when he [or she] knowingly possesses stolen property, with intent to benefithimself [or herself] or a person other than an owner thereof or to impede the recovery byan owner thereof, and when the value of the property exceeds [$3,000]" (Penal Law§ 165.50). In this regard, a "defendant's knowledge that property is stolen may beproven circumstantially, and the unexplained or falsely explained recent exclusivepossession of the fruits of a crime allows a jury to draw a permissible inference that [the]defendant knew the property was stolen" (People v Landfair, 191 AD2d 825, 826[1993], lv denied 81 NY2d 1015 [1993]; accord People v Chandler, 104 AD3d 618, 619 [2013];see People v Cintron, 95 NY2d 329, 332 [2000]).
Here, defendant does not dispute—and the record clearly reflects—thathe possessed a stolen vehicle on the day in question, and the parties stipulated that theSubaru had a market value in excess of $3,000. Hence, defendant's weight of theevidence claim hinges solely upon his assertion that the People failed to prove that heknew that the Subaru was stolen. In support of his argument on this point, defendantnotes that—at the time of his apprehension—he was operating a motorvehicle without a license, had an active warrant out for his arrest, was traveling thewrong way on a one-way street and had just crashed into a parked car, thereby providinghim with ample reason to evade Mulligan and provide a false name to Tucker. Againstthis backdrop, however, the jury also was presented with proof regarding defendant'sattempt to dispose of the keys to the Subaru following the accident, his vague andentirely unsubstantiated explanation—as related to Tucker at the scene—asto how he came into exclusive possession of the vehicle and his inability to identify the"friend" from whom he had obtained the keys in the first instance. Thus, upon ourindependent weighing of the evidence and the inferences to be drawn therefrom (see People v Callicut, 101AD3d 1256, 1259 [2012], lv denied 20 NY3d 1096 [2013]), we are satisfiedthat the verdict is not against the weight of the evidence (see People v Kindler, 83 AD3d964, 964-965 [2011], lv denied 17 NY3d 797 [2011]; People v Sousa, 23 AD3d697, 698 [2005], lv denied 6 NY3d 781 [2006]; cf. People vCintron, 95 NY2d at 332-333).
Defendant's remaining contentions do not warrant extended discussion. To the extent[*3]that defendant argues that Supreme Court shouldhave instructed the jury as to the inference arising from the recent and exclusivepossession of stolen property (see CJI2d [NY] Possession: Recent, Exclusive),we note that defendant neither requested such a charge nor objected to the charge asgiven; this issue is, therefore, unpreserved for our review (see CPL 470.05 [2];People v Avery, 80 AD3d982, 983 [2011], lv denied 17 NY3d 791 [2011]; People v Asai, 66 AD3d1138, 1140 [2009]), and we decline to exercise our interest of justice jurisdictionwith respect thereto. Nor are we persuaded that defense "[c]ounsel's sing[ular] error infailing to request such a charge . . . constitute[d] ineffective representationas it was not so serious as to compromise defendant's right to a fair trial" (People v Gunney, 13 AD3d980, 983 [2004], lv denied 5 NY3d 789 [2005]; see People v Geddes, 49 AD3d1255, 1257 [2008], lv denied 10 NY3d 863 [2008]; People v Albanese, 38 AD3d1015, 1018 [2007], lv denied 8 NY3d 981 [2007]). Counsel otherwisepresented cogent opening and closing statements, made appropriate motions andobjections, effectively cross-examined the People's witnesses and pursued a viabledefense, thereby affording defendant meaningful representation (see People v Head, 90 AD3d1157, 1159 [2011]; Peoplev Fisher, 89 AD3d 1135, 1139 [2011], lv denied 18 NY3d 883 [2012]).Finally, in light of defendant's extensive criminal history, we cannot say that the sentenceimposed is harsh or excessive.
Rose, J.P., Spain and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Although glass wasvisible throughout the vehicle's interior, no glass was present on the street, and thevehicle's owner testified that the Subaru was undamaged at the time it was stolen.