| People v Phoenix |
| 2014 NY Slip Op 01639 [115 AD3d 1058] |
| March 13, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vCarlton Phoenix, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), forrespondent.
Stein, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered June8, 2012 in Albany County, upon a verdict convicting defendant of the crimes of grandlarceny in the third degree and criminal contempt in the second degree (two counts).
In April 2011, defendant agreed to purchase certain real property from the victim forapproximately $367,000. Defendant informed the victim that he had funding through aVeterans Administration (hereinafter VA) program to finance the purchase. Over thenext four months, the victim loaned defendant and defendant's girlfriend, Joele Roberts,in excess of $6,000 in the form of cash, checks and cigarettes, all ofwhich—according to the victim—defendant promised to repay at the closingof the real estate transaction. In August 2011, the victim became suspicious about theseloans, particularly in view of the lack of progress with the closing, and filed a policereport. Defendant was subsequently arrested and brought to the police department, wherehe was questioned by Detective Robert Wise and gave a statement. Thereafter, an orderof protection was issued against defendant that prohibited him from, among other things,communicating with the victim. While that order was in effect, defendant called thevictim two times.
Defendant was charged by indictment with one count of grand larceny in the thirddegree and two counts of criminal contempt in the second degree. His subsequent motionto suppress his statement to the police was denied after a Huntley hearing.Following a jury trial, defendant was found guilty as charged and was thereaftersentenced as a second felony offender [*2]to an aggregateprison term of 3½ to 7 years. He was also ordered to pay $6,500 in restitution, plusinterest. Defendant now appeals and we affirm.
We reject defendant's claim that his statement to the police should have beensuppressed because he invoked his right to counsel during his custodial interrogation. Itis well settled that, under the NY Constitution, the right to counsel indelibly attacheswhen an accusatory instrument is filed or an individual in custody has retained anattorney in the matter under investigation or requests the assistance of an attorney (see People v Lopez, 16 NY3d375, 380 [2011]; People v Grice, 100 NY2d 318, 321 [2003]; People vRamos, 99 NY2d 27, 32-33 [2002]; People v West, 81 NY2d 370, 373-374[1993]; People v Dashnaw,85 AD3d 1389, 1390-1391 [2011], lv denied 17 NY3d 815 [2011]).However, where there is no "unequivocal" request for the assistance of counsel, the rightto counsel does not attach (People v Glover, 87 NY2d 838, 839 [1995]; see People v Mitchell, 2 NY3d272, 276 [2004]; People v Hicks, 69 NY2d 969, 970 [1987]; People v Engelhardt, 94 AD3d1238, 1240-1241 [2012], lv denied 19 NY3d 960 [2012]; People v Horton, 46 AD3d1225, 1226 [2007], lv denied 10 NY3d 766 [2008]).
Here, the People concede that defendant was in custody when he was questioned byWise and gave his statement. It is also undisputed that, at that time, defendant had beengiven Miranda warnings and that an accusatory instrument had not been filed,and defendant does not contend that he had retained an attorney in the matter underinvestigation. Accordingly, the issue distills to whether defendant made an unequivocalrequest for the assistance of counsel. At the outset of the interview, defendant askedWise if an individual named John Breeze—who defendant later explained was anattorney—could hear Wise's questions. Wise immediately stopped the questioningand, when he explained to defendant that he was concerned that defendant might haveinvoked his right to counsel, defendant adamantly denied having done so. Defendantrepeatedly told Wise that he was not invoking his right to counsel, insisted that he "didnot say [that he] want[ed] an attorney present" and indicated that he wanted to talk toWise. Under these circumstances, and according deference to Supreme Court's credibilityassessment that Wise "appeared frank, candid, and trustworthy, and his testimony had thegeneral force and flavor of credibility" and that the video of the interrogation wasauthentic and reliable (seePeople v Kidd, 112 AD3d 994, 996 [2013]; People v Kuklinski, 24 AD3d 1036, 1037 [2005], lvdenied 7 NY3d 758 [2006], lv denied on reconsideration 7 NY3d 814[2006]), we will not disturb Supreme Court's determination that defendant did notunequivocally invoke his right to have an attorney present (see People v Fridman,71 NY2d 845, 846 [1988]; People v Engelhardt, 94 AD3d at 1240-1241; People v Oxley, 64 AD3d1078, 1080 [2009], lv denied 13 NY3d 941 [2010]; People vHorton, 46 AD3d at 1226-1227; People v Wade, 296 AD2d 720, 720[2002]). Therefore, defendant's suppression motion was properly denied.
We also reject defendant's argument that his conviction for grand larceny in the thirddegree was not supported by legally sufficient evidence. A person is guilty of that crimewhen he or she, "with intent to deprive another of property or to appropriate the same tohimself [or herself] or to a third person, . . . wrongfully takes, obtains orwithholds such property from an owner" and the value of the property exceeds $3,000(Penal Law § 155.05 [1]; see Penal Law § 155.35 [1]; People v Brown, 107 AD3d1145, 1146 [2013], lv denied 22 NY3d 1039 [2013]). Further, a larceny canoccur by false pretenses when a defendant (1) obtains title or possession of money orpersonal property of another, (2) by means of an intentional false statement, (3)concerning a material fact, and (4) upon which the victim relied in parting with theproperty (see Penal Law § 155.05 [2] [d]; People v Drake, 61NY2d 359, 362 [1984]; Peoplev Trimmer, 30 AD3d 820, 822 [2006]).[*3]
Here, defendant's legal sufficiency argumentprimarily focuses on the element of intent. "Larcenous intent . . . 'is rarelysusceptible of proof by direct evidence, and must usually be inferred from thecircumstances surrounding the defendant's actions' " (People v Brown, 107 AD3dat 1146, quoting People vRussell, 41 AD3d 1094, 1096 [2007], lv denied 10 NY3d 964 [2008]).At trial, the People proffered evidence that defendant convinced the victim to make aseries of loans to him and Roberts, totaling more than $6,000 in cash, checks andcigarettes. The victim testified that defendant told him that defendant had funding for thereal estate transaction from a VA program and that he loaned defendant money after theybegan negotiating that transaction, based upon defendant's assurances that he wouldrepay the loans when the transaction closed.[FN1] Between April and August 2011, the victim gave three checks to defendant and/orRoberts, which totaled $3,028. The record also includes a written agreement signed bydefendant in August 2011, setting forth the total amount owed by defendant to thevictim.[FN2]
The victim also testified that he received multiple telephone calls and facsimiles frompurported employees of the VA—including an individual who identified himselfas Richard Wooderson—falsely indicating that defendant had VA funding for thereal estate transaction. One facsimile—with a cover sheet on Department of Laborletterhead—which was purportedly written by Wooderson, indicated that it wassent from the "Dept of Vet Affairs" located at the "Stratton VA Home Program."However, employees of the VA testified that there was no employee named Woodersonthere.[FN3] The victim eventually came to believe that defendant was the person who made thetelephone calls claiming to be Wooderson. As evidence thereof, the victim recounted anincident in August 2011 when, while in his car, he received a call from "Wooderson"during which Wooderson stated that the victim should give defendant another loan andagain validated the real estate transaction. During this conversation, the victim pulledinto his driveway and "heard the same voice coming from the upstairs apartment" wheredefendant was living, at which point he figured out that Wooderson was, in fact,defendant. In September 2011, the victim received an expected call from Wooderson andput the call on speaker phone in Wise's presence to enable Wise to hear the conversation.At that point, Wise "heard [defendant] talking to [the victim] as [Wooderson] cancellingan appointment between the two of them."[FN4]
When the foregoing evidence is viewed in the light most favorable to the People,there is a "valid line of reasoning and permissible inferences [that] could lead a rationalperson to the conclusion reached by the jury" (People v Bleakley, 69 NY2d 490,495 [1987]; accord People vPagan, 97 AD3d 963, 965 [2012], lv denied 20 NY3d 934 [2012]).Specifically, this evidence was legally sufficient to establish that defendant obtainedfrom the victim money and goods [*4]valued at morethan $3,000 with the intent to appropriate it to himself and/or Roberts by falsely statingthat he had secured VA financing in order to purchase real property from the victim andthat he would repay his debt to the victim at the closing and that, in reliance on thosestatements, the victim loaned defendant and Roberts such money and goods.
Defendant's convictions for criminal contempt in the second degree are alsosupported by legally sufficient evidence. Such a conviction requires proof that " 'a lawfulorder of the court clearly expressing an unequivocal mandate was in effect' and [that] theorder was disobeyed by a person having knowledge of that order" (People v Roblee, 70 AD3d225, 227 [2009], quoting Matter of Department of Envtl. Protection of City ofN.Y. v Department of Envtl. Conservation of State of N.Y., 70 NY2d 233, 240[1987]; see Penal Law § 215.50). At trial, the People proffered evidencethat a September 2011 order of protection was issued against defendant, effective untilApril 1, 2012, which prohibited him from contacting the victim by any means, includingby telephone or voice mail. The order of protection was issued in court, in defendant'spresence and was signed by defendant, indicating his receipt thereof. The victimtestified—and defendant does not dispute—that, notwithstanding said order,defendant left two messages on the victim's voice mail in November 2011.[FN5] This evidence was legally sufficient to establish defendant's guilt of criminal contemptin the second degree (see Peoplev Brown, 61 AD3d 1007, 1010 [2009]; People v McPherson, 32 AD3d 558, 559 [2006], lvdenied 7 NY3d 868 [2006]; see also People v Darpino, 51 AD3d 1059, 1060 [2008],lv denied 11 NY3d 735 [2008]).
To the extent that defendant argues that his convictions are against the weight of theevidence, we are unpersuaded. Although a different verdict would not have beenunreasonable, we are satisfied that the finding of guilt is supported by the weight of thecredible evidence (see People vRomero, 7 NY3d 633, 643 [2006]; People v Ford, 110 AD3d 1368, 1370 [2013]).
We are similarly unpersuaded by defendant's contention that Supreme Court erred bydenying his objection to the People's proffer of certain audio recordings, made by thevictim on his own behalf, of telephone conversations he had with defendant, as well asmessages left by defendant on the victim's voice mail. Inasmuch as the statements onthose recordings were neither made to a public servant or a person acting as an agent oflaw enforcement, the People were not required to provide defendant notice of theirintention to offer them at trial pursuant to CPL 710.30 (1) and (2) (see People v Cole, 24 AD3d1021, 1025 [2005], lv denied 6 NY3d 832 [2006]; People v Batista,277 AD2d 141, 142 [2000], lv denied 96 NY2d 825 [2001]; People vQuinto, 245 AD2d 121, 121 [1997]; People v Rodriguez, 114 AD2d 525,526 [1985], lv denied 66 NY2d 1043 [1985]; compare People v Wilhelm, 34 AD3d 40, 48 [2006]).
We also reject defendant's argument that Supreme Court erred by taking a partialverdict at trial.[FN6] After the jury indicated that it had reached a verdict, the court started taking the verdictbut, when the jury was polled on the larceny charge, one juror stated that she had made amistake with her verdict. As a result, and over defendant's objection, Supreme Court tookthe [*5]verdict on the two counts of criminal contemptand sent the jury back to further deliberate on the larceny charge. In our view, SupremeCourt properly followed the procedure outlined in CPL 310.70 (1) (b), and there is nobasis in the record to conclude that the court abused its broad discretion in accepting thepartial verdict and then directing the jury to continue deliberations (see People v Bowman, 79AD3d 1368, 1370 [2010], lv denied 16 NY3d 828 [2011]; People v Harris, 50 AD3d1387, 1388-1389 [2008]; People v Gause, 38 AD3d 999, 1001 [2007], lvdenied 9 NY3d 865 [2007]; compare People v Rivera, 15 NY3d 207, 210-211[2010]).[FN7]
Finally, Supreme Court did not err in ordering restitution without a hearing.Inasmuch as the record clearly establishes the victim's actual out-of-pocket loss anddefendant did not request a hearing, no restitution hearing was required (seePenal Law § 60.27 [2]; People v Drew, 16 AD3d 840, 841 [2005]; see also People v Tzitzikalakis,8 NY3d 217, 221 [2007]; People v Gazivoda, 68 AD3d 1346, 1347 [2009], lvdenied 14 NY3d 840 [2010]). To the extent not specifically addressed herein,defendant's remaining contentions have been considered and found to be lacking inmerit.
Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: Defendant admitted thathe and Roberts received loans from the victim, but denied that the loans were connectedin any way to the real estate transaction.
Footnote 2: According to the victim,both he and defendant wrote the agreement.
Footnote 3: Another VA employeefrom whom a facsimile was allegedly received by the victim testified that he did not sendit.
Footnote 4: Wise testified that hewas very familiar with defendant's voice and could tell that defendant was trying todisguise his voice during the conversation.
Footnote 5: Nor does defendantdispute the existence of the order of protection or that he signed it; he merely claims thathe did not pay attention to what it was.
Footnote 6: Notwithstanding thePeople's claim to the contrary, defendant properly preserved this argument for ourreview.
Footnote 7: Defendant's argumentthat the partial verdict should have been rejected by Supreme Court as repugnant isunpreserved (see People vHawkins, 110 AD3d 1242, 1244 [2013], lv denied 22 NY3d 1041[2013]; People vMcCottery, 90 AD3d 1323, 1326 [2011], lv denied 19 NY3d 975[2012]) and, in any event, without merit.