| People v Bost |
| 2016 NY Slip Op 04083 [139 AD3d 1317] |
| May 26, 2016 |
| Appellate Division, Third Department |
[*1](May 26, 2016)
| The People of the State of New York, Respondent, v Jeremy R. Bost, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
Paul Czajka, District Attorney, Hudson (James A. Carlucci of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Columbia County(Nichols, J.), rendered June 17, 2013, upon a verdict convicting defendant of the crimesof burglary in the first degree (four counts), robbery in the first degree, criminalpossession of a weapon in the second degree (two counts) and criminal possession of aweapon in the third degree.
Defendant, along with two codefendants, was charged in a nine-count indictment fora series of events stemming from three home invasions occurring over the course of threedays in January 2012.[FN*] On the night of January 9, 2012,defendant and one accomplice entered a trailer in the Village of Valatie, ColumbiaCounty. One of the residents, Edrick King, was woken up by the two men, who bothwore hooded sweatshirts and masks over their faces, as they searched his room anddemanded money. During the late evening/early morning hours of January 11 and 12,2012, three men committed a home invasion in the Town of Chatham, Columbia County.The owners of that home testified that they awoke to find two men in their hallway, eachbrandishing a gun, and that, after they confronted the intruders, the men left. Shortlythereafter, during a traffic stop, defendant was found with two guns tucked in hiswaistband. Following a jury trial, defendant was convicted of four counts of burglary inthe first degree, one count of robbery in the first degree, two counts of criminalpossession of a weapon in the second degree and one count [*2]of criminal possession of a weapon in the third degree.County Court sentenced defendant, as a second felony offender, to an aggregate prisonterm of 53 years to be followed by 20 years of postrelease supervision. Defendant nowappeals.
Defendant contends that the evidence was legally insufficient to support hisconvictions and the verdict was against the weight of the evidence. Insofar as is relevantto the issues that defendant raises on appeal, a necessary element for both burglary in thefirst degree and robbery in the first degree is that the defendant or another participantpossessed a "deadly weapon" (see Penal Law §§ 140.30 [1];160.15 [2]). A "deadly weapon" is defined as a "loaded weapon from which a shot,readily capable of producing death or other serious physical injury, may be discharged"(Penal Law § 10.00 [12]). Therefore, to constitute a deadly weapon, theweapon must be "both operable and loaded with live ammunition" (People vShaffer, 66 NY2d 663, 664 [1985]; see People v Grice, 84 AD3d 1419, 1420 [2011], lvdenied 17 NY3d 806 [2011]). To convict defendant of criminal possession of aweapon in the second degree, the People had to establish that he possessed a loadedfirearm at a location other than his home or place of business (see Penal Law§ 265.03 [3]) or "with intent to use the same unlawfully against another"(Penal Law § 265.03 [1] [b]; see People v Dale, 115 AD3d 1002, 1004 [2014]). Aloaded firearm is defined as "any firearm loaded with ammunition or any firearm whichis possessed by one who, at the same time, possesses a quantity of ammunition whichmay be used to discharge such firearm" (Penal Law § 265.00 [15]).
With respect to the home invasion on January 9, 2012, the People presentedtestimony by residents King and Bryon Wilson. King testified that he saw two peopleeach with guns entering his trailer. King was also able to identify the guns that each ofthe intruders were holding. Wilson testified that he never woke up that evening but,when he woke up the next morning, he discovered that his bag and work gloves weremissing. The People also presented testimony by Catrina Lewis, who testified that,during the evening on January 9, 2012, she was in a vehicle with defendant and twoothers, that the vehicle stopped at one point and that the three men left the vehicle andlater returned with a bag, which they later threw out of the vehicle. Paul Strobel, asergeant with the State Police, testified that he found a bag and a glove on the side of theroad, and Wilson confirmed that the bag and glove were the ones that went missing onJanuary 9, 2012.
With respect to the home invasion that occurred on the late evening/early morning ofJanuary 11 and 12, 2012, David Chrapowitzky testified that he woke up when he heardpeople in the hallway outside of his bedroom. When he got up and went into the hallway,he turned on the light and saw two men, both wearing masks, who "spun around, camedirectly down the hall towards [him and] brought up pistols." Chrapowitzky also testifiedthat while he was in the hallway, he heard "the sound of a shell being . . .moved into a chamber." Barbara Chrapowitzky, David Chrapowitzky's wife, testified thatshe was woken up by the sound of her husband confronting the two intruders. Shetestified that she saw two men with guns in the hallway.
Donald Krapf, a sergeant with the Columbia County Sheriff's Office, testified thatshortly after midnight on January 12, 2012, he responded to a police radio call regardinga home invasion. While en route, he pulled over a vehicle where a defendant was apassenger. When Krapf searched defendant, he found two handguns in his waistband.According to Krapf, the .32 caliber handgun was not loaded, but the .45 caliber handgunwas "cocked," had a round in the chamber and was ready to be fired. Krapf secured the.45 caliber handgun by unloading the weapon, removing the magazine and drawing theslide back. After an in-court demonstration, David Chrapowitzky and BarbaraChrapowitzky both confirmed that, on the night of the home invasion, they heard thesound of the .45 caliber handgun being loaded. Lewis testified that she was in the vehiclewith defendant, two other men and her cousin on the [*3]night of the January 11-12, 2012 home invasion, that sheheard the same sound just before defendant left the vehicle and that she observeddefendant with the .45 caliber handgun. William Dunspaugh, a Columbia County DeputySheriff, testified that when he searched the vehicle that defendant had been in when hewas apprehended on January 12, 2012, he found an unfired .45 caliber bullet. AnthonyBrahm, a criminal investigator with the Columbia County Sheriff's office and a certifiedstate firearms instructor, testified that he test-fired the .45 caliber handgun with theammunition that was in the magazine when the handgun was seized on January 12,2012.
To determine whether a verdict is legally sufficient, we must decide, uponconsideration of the facts in the light most favorable to the prosecution, whether "there isa valid line of reasoning and permissible inferences from which a rational jury couldhave found the elements of the crime proved beyond a reasonable doubt" (People v Denson, 26 NY3d179, 188 [2015] [internal quotation marks and citations omitted]). Here, Lewis andthe Chrapowitzkys confirmed that they heard the sound of the .45 caliber handgun beingloaded. Krapf testified that defendant had the loaded .45 caliber handgun tucked into hiswaistband and, based on Brahm's testing, the .45 caliber handgun was operable. In ourview, this evidence establishes that defendant possessed a "deadly weapon" during theevents at the Chrapowitzkys' home and, thus, was legally sufficient to support theconvictions of first degree burglary and first degree robbery (see Penal Law§§ 140.30 [1]; 160.15 [2]; People v Wilson, 252 AD2d 241,248 [1998]). Further, although a different verdict would not have been unreasonable,when we "weigh conflicting testimony, review any rational inferences that may be drawnfrom the evidence and evaluate the strength of such conclusions" (People v Danielson, 9 NY3d342, 348 [2007]), we find that the jury's verdict with respect to the burglary androbbery at the Chrapowitzkys' home was not against the weight of the evidence (see People v Freeman, 78AD3d 1505, 1505 [2010], lv denied 15 NY3d 952 [2010]; People vSandoz, 248 AD2d 334, 334 [1998]).
We agree with defendant, however, that there was not legally sufficient evidence toestablish that defendant possessed a "deadly weapon" during the burglary and robbery atthe home occupied by King and Wilson (see Penal Law§§ 10.00 [12]; 140.30 [1]; 160.15). In contrast to the evidence withrespect to the .45 caliber handgun used at the Chrapowitzsky residence, there was noevidence with regard to the use of a "deadly weapon" at the King/Wilson residence.Although King testified that he saw two men with guns, the People did not present anyevidence that could lead the jury to conclude that the guns were loaded and operable(see People v Grice, 84 AD3d at 1420; People v Gulnac, 309 AD2d 1070,1071-1072 [2003]). Nevertheless, because the evidence, viewed in a light most favorableto the People, was legally sufficient to convict defendant of the lesser included offensesof burglary in the second degree (see Penal Law § 140.25 [2]) androbbery in the second degree (see Penal Law § 160.10 [2] [b]), wemodify the judgment to reduce the convictions accordingly and remit the matter toCounty Court for resentencing (see CPL 470.15 [2] [a]; 470.20 [4]; People vGrice, 84 AD3d at 1420; People v Gulnac, 309 AD2d at 1072).
Although defendant did not preserve the legal sufficiency challenges he now raiseswith regard to his two convictions for criminal possession of a weapon in the seconddegree, we necessarily review the evidence as to each element of the crimes as part of ourweight of the evidence review (see People v Danielson, 9 NY3d at 348-349; People v McFarland, 106AD3d 1129, 1130 [2013], lv denied 22 NY3d 1140 [2014]). A person isguilty of criminal possession of a weapon in the second degree where he or she intends touse a loaded firearm unlawfully against another person or possesses any loaded firearmoutside of his or her home or business (see Penal Law § 265.03 [1][b]; [3]; People v Capers,129 AD3d 1313, 1314 [2015]; People v Miles, 119 AD3d 1077, 1078 [2014], lvdenied 24 NY3d 1003 [2014]). Here, although a different verdict would not havebeen unreasonable, when we consider the rational inferences [*4]that could be drawn from the testimony presented and viewsuch testimony in a neutral light (see People v McFarland, 106 AD3d at 1131),we find that the verdict as to the two counts of criminal possession of a weapon in thesecond degree was supported by the weight of the evidence (see People v Nelson, 128AD3d 1225, 1227 [2015], lv denied 26 NY3d 1041 [2015]; People v Butler, 126 AD3d1122, 1123 [2015], lv denied 25 NY3d 1199 [2015]; People v Hawkins, 110 AD3d1242, 1242-1243 [2013], lv denied 22 NY3d 1041 [2013]). Defendant'sclaim that he was entitled to a circumstantial evidence charge is not preserved for ourreview because he did not request such a charge or object to the charge that was given(see People v Davis, 105AD3d 1095, 1097 [2013], lv denied 21 NY3d 1003 [2013]; People v Paige, 77 AD3d1193, 1196 [2010], affd 16 NY3d 816 [2011]).
Finally, defendant argues, the People concede and we agree that County Courtimposed an illegal period of postrelease supervision. Defendant was found guilty of fourcounts of burglary in the first degree, two counts of criminal possession of a weapon inthe second degree, one count of criminal possession of a weapon in the third degree andone count of robbery in the first degree, all class B felonies (see Penal Law§ 70.02 [1] [a]). County Court sentenced defendant, as a second felonyoffender, to an aggregate prison term of 53 years and 20 years of postrelease supervision.This was error because, under the circumstances presented, the postrelease supervisionterm should have been 2
Peters, P.J., Lahtinen, Rose and Aarons, JJ., concur. Ordered that the judgment ismodified, on the law, by reducing defendant's convictions of (1) burglary in the firstdegree under count 6 of the indictment to burglary in the second degree and (2) robberyin the first degree under count 8 of the indictment to robbery in the second degree; vacatethe sentences imposed on said convictions, vacate the periods of postrelease supervisionand matter remitted to the County Court of Columbia County for resentencing; and, as somodified, affirmed.
Footnote *:This Court previouslyaffirmed the conviction of one codefendant (People v Anderson, 118 AD3d 1138 [2014], lvdenied 24 NY3d 1117 [2015]).