| People v Briggs |
| 2015 NY Slip Op 04879 [129 AD3d 1201] |
| June 11, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vScott Briggs, Appellant. |
John A. Cirando, Syracuse, for appellant.
Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Clark, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered October 22, 2012, upon a verdict convicting defendant of thecrimes of burglary in the second degree and criminal obstruction of breathing or bloodcirculation.
In February 2011, defendant entered the home of his ex-girlfriend, StephanieSawyer, by picking a locked door with a store-loyalty card. Sawyer, RobertRathbun—Sawyer's then-boyfriend—and two others were present in thehome at the time and, when Rathbun attempted to intervene in an argument betweendefendant and Sawyer, defendant grabbed Rathbun by the throat and choked him.Sawyer summoned the police, who arrived a short time later and apprehended defendantwhile he sat in his vehicle parked in Sawyer's driveway. Defendant was thereafterindicted on the charges of burglary in the second degree and criminal obstruction ofbreathing or blood circulation. After a jury trial, defendant was convicted as charged andwas sentenced, as a second felony offender, to an aggregate prison term of five yearswith five years of postrelease supervision. Defendant now appeals and we affirm.
As an initial matter, defendant's arguments regarding the legal sufficiency of thePeople's evidence are largely unpreserved inasmuch as he failed to make a specificmotion to dismiss the criminal obstruction of breathing or blood circulation count at theclose of the People's evidence (see People v Hawkins, 11 NY3d 484, 492 [2008]) and heonly addressed the insufficiency of the proof relating to the element of intent whenseeking dismissal of the burglary count (see Penal Law § 140.25[2]; People v Gray, 86 NY2d 10, 19 [1995]; People v Heyliger, 126 AD3d 1117, 1118 [2015]). In anyevent, as per defendant's request, we remain obligated to [*2]conduct a weight of the evidence review for both of thecharged crimes, which "necessarily involves an evaluation of whether all elements of thecharged crime[s] were proven beyond a reasonable doubt at trial" (People v Robinson, 123 AD3d1224, 1225 [2014] [internal quotation marks and citations omitted], lvdenied 25 NY3d 992 [2015]; see People v Danielson, 9 NY3d 342, 348-349[2007]).
As relevant here, to convict defendant of burglary in the second degree, the Peoplewere required to prove that defendant "knowingly enter[ed] or remain[ed] unlawfully in abuilding with intent to commit a crime therein" and that the building in question was "adwelling" (Penal Law § 140.25 [2]). "[I]ntent may be inferred from thecircumstances of the intruder's unlawful entry, unexplained presence on the premises,and actions and statements when confronted by police or the property owner" (People v Ostrander, 46 AD3d1217, 1218 [2007]; accordPeople v Sabines, 121 AD3d 1409, 1410 [2014]). Thus, the People were notrequired to prove that defendant had the intent to commit a particular crime whenentering or while remaining in Sawyer's home (see People v Mackey, 49 NY2d274, 279 [1980]). Further, in order to sustain a conviction of criminal obstruction ofbreathing or blood circulation, the People had to show that defendant "applie[d] pressureon the throat or neck" of a person "with intent to impede the normal breathing orcirculation of the blood of [such] person" (Penal Law § 121.11 [a]). Again,defendant's intent may be inferred from the surrounding circumstances (see People v Carte, 113 AD3d191, 195 [2013], lv denied 23 NY3d 1035 [2014]).
To prove their case, the People presented, among other things, the testimony ofSawyer and Rathbun, both of whom testified that, when they saw defendant's vehicle pullinto the driveway on February 22, 2011, Sawyer turned off the lights in the house, lockedthe doors and hid in the bathroom along with Rathbun. While looking out the bathroomwindow, Rathbun and Sawyer watched defendant walk to the back door and knockrepeatedly, and they then heard the locked door open, saw the lights come on and hearddefendant walking around the house. After a time, Sawyer left the bathroom to confrontdefendant and an argument ensued, during which Sawyer directed defendant to leave.Defendant refused and made threatening inquiries into the whereabouts of Rathbun.Upon hearing defendant's comments and the sound of someone being slammed against awall,[FN*] Rathbunexited the bathroom, confronted defendant and likewise demanded that he leave thehouse. Both Sawyer and Rathbun testified that defendant again refused to leave and, aftera brief, heated verbal exchange between the two men, defendant charged Rathbun andgrabbed him by the throat. Rathbun thereafter had difficulty breathing and, later, troubleswallowing. Photographs admitted into evidence depict bruising on Rathbun's neck.Defendant admitted to Sawyer that he entered her home without her permission bypicking the lock with a credit-card type card, which the police officer who responded tothe scene found in defendant's possession. Over defendant's objection, Sawyer testifiedthat this was not the first time that defendant had attempted to enter her house in such amanner as he had likewise done so roughly two months earlier. On cross-examination,Sawyer acknowledged that, during the incident at issue herein, defendant repeatedlystated that he just wanted to talk to her.
Starting with the limited issue of whether the People presented legally sufficientevidence to support the intent element of burglary in the second degree, " 'weview the evidence in the light most favorable to the People and will not disturb theverdict so long as the evidence demonstrates a valid line of reasoning and permissibleinferences that could lead a rational person to the conclusion reached by thejury' " (People vPeters, 126 AD3d 1029, 1030 [2015], lv [*3]denied 25 NY3d 991 [2015], quoting People v Peryea, 68 AD3d1144, 1146 [2009], lv denied 14 NY3d 804 [2010]; see People v Pierce, 106 AD3d1198, 1199 [2013]). The testimony from Rathbun and Sawyer regarding defendant'sunprompted, threatening comments toward Rathbun and the subsequent altercationbetween the two men—which defendant initiated—constituted legallysufficient evidence that defendant intended to commit a crime when he unlawfullyentered Sawyer's home (seePeople v Judware, 75 AD3d 841, 844-845 [2010], lv denied 15 NY3d853 [2010]; People v Ostrander, 46 AD3d at 1218; People v Rivera, 301AD2d 787, 789 [2003], lv denied 99 NY2d 631 [2003]; compare People v Green, 24AD3d 16, 18-19 [2005]). Further, although a different verdict would not have beenunreasonable, after considering the evidence in a neutral light and according theappropriate deference to the jury's credibility determinations, we conclude that theverdict on the burglary count is not against the weight of the evidence (see People vDanielson, 9 NY3d at 349; People v Bleakley, 69 NY2d 490, 495 [1987];People v Sabines, 121 AD3d at 1410-1411; People v Peterson, 118 AD3d 1151, 1152-1153 [2014],lv denied 24 NY3d 1087 [2014]). Regarding the charge of criminal obstructionof breathing or blood circulation, however, no reasonable view of theevidence—i.e., Rathbun's uncontradicted testimony that defendant choked him andthe photographs of Rathbun's bruised throat—would allow a jury to acquitdefendant of that crime and, thus, a full review of the evidence is unnecessary (seePeople v Bleakley, 69 NY2d at 495).
Despite defense counsel's concession at the Molineux hearing that defendantentered Sawyer's residence without her permission on the night in question, we find noerror in County Court's determination that the People could inquire into defendant's prioruse of a credit-card type card to pick the lock on Sawyer's home for the purpose ofshowing an absence of mistake (see People v Molineux, 168 NY 264, 293[1901]; People v Rivera,124 AD3d 1070, 1073 [2015]; People v Anderson, 114 AD3d 1083, 1085 [2014], lvdenied 22 NY3d 1196 [2014]). Contrary to defendant's contention, thepre-Molineux informal concession by his counsel of an unlawful entrance intoSawyer's home on the night in question does not prohibit the People from nonethelessseeking to present relevant evidence regarding each element of the crimes charged.Inasmuch as the People are under no legal obligation to consent to a formal stipulationregarding an element of a charged offense (see People v White, 79 AD3d 1460, 1463 [2010], lvdenied 17 NY3d 803 [2011]; see also People v Hills, 140 AD2d 71, 77[1988], lv denied 73 NY2d 855 [1988]), they certainly cannot be made to accepta defense counsel's informal assurance that he will not contest an element of the crime attrial. Thus, inasmuch as County Court allowed the testimony for a proper purpose,appropriately balanced its probative value against its prejudicial effect, and issuedlimiting instructions to the jury as soon as the People's line of questioning was completeand again during its charge to the jury, we discern no error in County Court'sdetermination (see People v Anderson, 114 AD3d at 1085-1086; People v Johnson, 106 AD3d1272, 1274 [2013], lv denied 21 NY3d 1043 [2013]).
McCarthy, J.P., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Although Rathbuninitially thought defendant had pushed Sawyer against the wall, that was not the case.