| People v Morrison |
| 2015 NY Slip Op 02997 [127 AD3d 1341] |
| April 9, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJames Morrison, Appellant. |
Carolyn B. George, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedApril 9, 2013 in Albany County, upon a verdict convicting defendant of the crime ofburglary in the third degree.
On December 12, 2011, detective Mark Sauter responded to a call of a burglary inprogress at 20 Judson Street in the City of Albany. When Sauter pulled up to thataddress, he observed a blue Ford F-150 pickup truck backed up to the front steps of thebuilding. As Sauter began to walk towards the building, two men—later identifiedas defendant and Lawrence Carden—emerged from the front door carrying a largeradiator. As a result of this incident, defendant was charged in a single-count indictmentwith burglary in the third degree. At the conclusion of the trial that followed, at whichSauter, Carden and the building's owner, Douglas Pologa, appeared and testified,defendant was found guilty as charged and thereafter was sentenced as a second felonyoffender to a prison term of 3
We affirm. "A person is guilty of burglary in the third degree when he [or she]knowingly enters or remains unlawfully in a building with intent to commit a crimetherein" (Penal Law § 140.20). In this regard, "[a] person 'enters or remainsunlawfully' in or upon premises when he [or she] is not licensed or privileged to do so"(Penal Law § 140.00 [5]). The requisite intent, in turn, "may be inferredfrom the circumstances of the [defendant's] unlawful entry, unexplained presence on thepremises, and actions and statements when confronted by police or the property owner"(People v Sabines, 121AD3d 1409, 1410 [2014] [internal quotation marks and citation omitted]; see People v Peterson, 118AD3d 1151, 1152 [2014], lv [*2]denied 24NY3d 1087 [2014]; People vBarringer, 54 AD3d 442, 443 [2008], lv denied 11 NY3d 830, 836[2008]).
Here, Carden testified that, beginning in early December 2011,defendant—who Carden generally knew from theneighborhood—repeatedly asked Carden "to go with him to this house on Judson[Street] and take some radiators out of there." Although Carden initially refused, heeventually acquiesced to defendant's requests and, on December 12, 2011, drove to theJudson Street address with defendant. According to Carden, defendant indicated that hehad permission to remove the radiators from the building, that they would be taking theradiators to a local charity and that he would "split whatever [they] got from the place"with Carden.[FN1]Once the two arrived at the Judson Street location, defendant instructed Carden to backhis truck up to the steps of the building; as Carden was doing so, defendant went aroundto the back of the premises and thereafter let Carden into the building by way of the frontdoor. Carden was in the process of helping defendant remove "about three radiators"from the building and load them into the back of Carden's truck when Sauterarrived.
Sauter, in turn, testified that, after arriving at the scene, he observed defendant andCarden coming out the front door carrying a radiator in their hands. When Sauterinstructed the pair to put the radiator down and come towards him, Carden complied;defendant remained where he was, "making head movements" and "looking back andforth" at Sauter, the stairs and down the street, before taking "a couple steps toward thetop of the staircase." Photographs taken at the scene and admitted into evidence at trialdepict, among other things, radiators in the bed of Carden's pickup truck. Finally, Pologatestified that the property—including the doors to the building and the gate to thealleyway along the side of the house—was always locked, that he did not knowdefendant (or Carden for that matter) and that he did not give defendant (or anyone fromthe named charity) permission to enter the property and remove radiators from within. Inour view, the foregoing testimony, together with the reasonable inferences that may bedrawn therefrom (see People vSturdevant, 74 AD3d 1491, 1492-1493 [2010], lv denied 15 NY3d 810[2010]), constitutes legally sufficient evidence to support defendant's conviction ofburglary in the third degree. Further, "upon independent consideration of the evidence ina neutral light" (People vWoodrow, 91 AD3d 1188, 1190 [2012], lv denied 18 NY3d 999[2012]), we are satisfied that the verdict is in accord with the weight of the evidence.
Defendant next contends that he was deprived of a fair trial by virtue of certainremarks made by the prosecutor during closing argument. To the extent that defendant'sobjections to the specific comments at issue have been preserved for our review, we findthem to be lacking in merit. When the prosecutor suggested that defendant, in support ofhis theory that Carden was the "criminal mastermind" behind the burglary, was"mak[ing] stuff up," Supreme Court (Lamont, J.)—characterizing that suggestionas "[b]urden shifting"—sustained defense counsel's objection, promptly instructedthe jury to disregard the prosecutor's comment and, during the course of its final chargeto the jury, reiterated that defendant was "not required to prove that he [was] not guilty,"thereby "ameliorat[ing] any prejudice to defendant" (People v VanVorst, 118 AD3d 1035, 1037 [2014]). As tothe remaining statements, we find that the prosecutor's remarks either were fair commentupon the evidence or, to the extent that they were improper, did not [*3]reflect "a flagrant and pervasive pattern of prosecutorialmisconduct so as to deprive [defendant] of a fair trial" (People v Green, 119 AD3d23, 30 [2014], lv denied 23 NY3d 1062 [2014] [internal quotation marks andcitations omitted]).
Nor are we persuaded that Supreme Court erred in refusing to charge the jury as tothe lesser included offense of criminal trespass in the third degree. "A defendant isentitled to a lesser included offense charge upon request when (1) it is impossible tocommit the greater crime without concomitantly committing the lesser offense by thesame conduct and (2) there [is] a reasonable view of the evidence to support a findingthat the defendant committed the lesser offense but not the greater" (People v Nisselbeck, 85 AD3d1206, 1208 [2011] [internal quotation marks and citation omitted]; see People v Heslop, 48 AD3d190, 193-194 [2007], lv denied 10 NY3d 935 [2008]). Here, there is noquestion that "[c]riminal trespass in the third degree is a lesser included offense ofburglary in the third degree inasmuch as it is impossible to commit the greater offensewithout at the same time committing the lesser" offense (People v Roseborough, 118AD3d 1347, 1347 [2014], lv denied 24 NY3d 964 [2014] [internal quotationmarks and citation omitted]; seePeople v Alsaifullah, 96 AD3d 1103, 1104 [2012], lv denied 19 NY3d994 [2012]). Hence, our inquiry distills to whether the evidence adduced at trial, viewedin the light most favorable to defendant (see People v Carota, 93 AD3d 1072, 1075 [2012]), wouldsupport a finding that he committed criminal trespass in the third degree but not burglaryin the third degree. To our analysis, the answer to that question is no.
The only element distinguishing criminal trespass in the third degree (seePenal Law § 140.10 [a]) from burglary in the third degree is the defendant's"intent to commit a crime therein" (Penal Law § 140.20).[FN2] Simply put, in light ofthe testimony offered by Carden and Pologa and the corresponding "absence of anyevidence suggesting a noncriminal purpose for [defendant's] entry" (People v Martinez, 9 AD3d679, 681 [2004], lv denied 3 NY3d 709 [2004]; accord People v Miles, 55AD3d 955, 956 [2008], lv denied 11 NY3d 928 [2009]), there is noreasonable view of the evidence that would support a finding that defendant entered theJudson Street address "without an intent to commit any crime other than trespass"(People v Alsaifullah, 96 AD3d at 1104). Accordingly, Supreme Court did not errin denying defendant's request to charge on this point.
Finally, inasmuch as defendant requested that the jury be given an Allencharge and raised no objection to the charge subsequently delivered by Supreme Court,defendant's present claim—that the charge was coercive—is unpreservedfor our review (see People vPomales, 49 AD3d 962, 964 [2008], lv denied 10 NY3d 938 [2008]). Tothe extent that defendant contends that counsel's failure to object to the Allencharge constituted the ineffective assistance of counsel, we need note only that counselcannot be faulted for failing to raise an issue "that has little or no chance of success" (People v Brock, 107 AD3d1025, 1029 [2013], lv denied 21 NY3d 1072 [2013] [internal quotationmarks and citation omitted]). Here, the court's Allen charge mirrored the chargecontained in the Criminal Jury Instructions (see CJI2d[NY] Jury [*4]Issues—Jury Deadlocked]) and, therefore, does notafford a basis upon which to grant the relief now requested (see generally People v Briskin,125 AD3d 1113, 1120-1121 [2015]; People v Davis, 103 AD3d 810, 812 [2013], lvdenied 21 NY3d 1003 [2013]). Defendant's remaining contentions, including thoseraised in his pro se brief, have been examined and found to be lacking in merit.
McCarthy, J.P., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:As a follow-up question,Carden was asked by defense counsel, "So you went into a building, took something thatdidn't belong to you with the intent to sell it?", to which Carden replied, "That's right." Inresponse to counsel's ensuing question, "And get money?", Carden replied, "Yes, wedid."
Footnote 2:"A person is guilty ofcriminal trespass in the third degree when he [or she] knowingly enters or remainsunlawfully in a building or upon real property . . . which is fenced orotherwise enclosed in a manner designed to exclude intruders" (Penal Law§ 140.10 [a]). "A person is guilty of burglary in the third degree when he[or she] knowingly enters or remains unlawfully in a building with intent to commit acrime therein" (Penal Law § 140.20).