| People v Williams |
| 2017 NY Slip Op 09196 [156 AD3d 1224] |
| December 28, 2017 |
| Appellate Division, Third Department |
[*1](December 28, 2017)
| The People of the State of New York, Respondent, v FrederickWilliams, Appellant. |
Kelly L. Egan, Rensselaer, for appellant.
Paul Czajka, District Attorney, Hudson (James A. Carlucci of counsel), for respondent.
Rumsey, J. Appeal from a judgment of the County Court of Columbia County (Koweek, J.),rendered April 2, 2014, (1) upon a verdict convicting defendant of the crimes of burglary in thesecond degree and robbery in the third degree, and (2) which revoked defendant's probation andimposed a sentence of imprisonment.
In the early hours of August 2, 2012, defendant, accompanied by four other individuals,drove a white suburban vehicle (hereinafter the SUV) to the home of Desiree Graziano.Defendant parked the vehicle in the driveway of a nearby property and remained in the SUV asthe other four individuals broke into Graziano's home while she and three others were presentand stole money and drugs. When the police responded, the suspects fled the home and returnedto the SUV. Defendant then engaged the police in a short high-speed chase before he drove theSUV off the road where it came to rest in a pond. All five occupants exited the SUV andattempted to flee. Defendant successfully escaped, but was subsequently arrested.
In September 2012, defendant and codefendants Bobby Smith, Miguel Alcarez, JosephSpeed and Jeremy Cobbins were each indicted on one count of burglary in the first degree andone count of robbery in the first degree. Pursuant to defendant's motion, his case was severedfrom the codefendants' cases. Following a jury trial, defendant was acquitted of the chargedcrimes but was found guilty of the lesser included offenses of burglary in the second degree androbbery in the third degree. Thereafter, defendant was sentenced as a second felony offender toconcurrent prison terms of 12 years, with 10 years of postrelease supervision, for the burglary[*2]conviction and 3
Defendant initially argues that his convictions were not supported by legally sufficientevidence and that the verdicts were against the weight of the evidence. As defendant concedes,his challenge to the legal sufficiency of the evidence is unpreserved for our review because hemade only a general motion for a trial order of dismissal at the close of the People's case andfailed to renew that motion after he presented his proof (see People v Newell, 148 AD3d 1216, 1220 [2017], lvdenied 29 NY3d 1035 [2017]). Nonetheless, in conducting our weight of the evidencereview, we must evaluate whether all elements of the crimes for which defendant was convictedwere proven beyond a reasonable doubt (see People v Spencer, 152 AD3d 863, 863-864 [2017], lvdenied 30 NY3d 983 [2017]). In determining whether the verdict is supported by the weightof the evidence, where, as here, a different verdict would not have been unreasonable, we mustview the evidence in a neutral light and accord deference to the jury's credibility determinations(see id.; People v Cooley,149 AD3d 1268, 1269 [2017], lv denied 30 NY3d 979 [2017]; People v Gunn, 144 AD3d 1193,1194 [2016], lv denied 28 NY3d 1145 [2017]).
Defendant does not claim that the codefendants did not commit burglary or robbery; rather,defendant argues that his conviction was against the weight of the evidence because the onlydirect evidence that he intended to aid his codefendants in committing the burglary and robberywas the uncorroborated testimony of Speed, an accomplice. A person is liable as an accomplicefor the conduct of another person "when, acting with the mental culpability required for thecommission thereof, he [or she] solicits, requests, commands, importunes, or intentionally aidssuch person to engage in such conduct" (Penal Law § 20.00). "A defendant may notbe convicted solely on the basis of accomplice testimony that lacks the support of corroborativeevidence tending to connect the defendant with the commission of the charged offense" (People v Slaughter, 150 AD3d1415, 1416 [2017] [internal quotation marks, brackets and citations omitted]). "The requiredcorroborative evidence need not be powerful in itself, show the commission of the crime or showthat [the] defendant was connected with the commission of the crime. It is enough if it tends toconnect the defendant with the commission of the crime in such a way as may reasonably satisfythe jury that the accomplice is telling the truth. [Thus, c]orroborative evidence sufficientlyconnects the defendant to the crime if, when considered with the accomplice's testimony, itmakes it more likely that the defendant committed the offense, and thus tends to connect him orher to it" (People v Godallah, 132AD3d 1146, 1149 [2015] [internal quotation marks, ellipses, brackets and citationsomitted]).
Speed testified that, on the night in question, defendant picked him up in the SUV and that,along with Smith, Cobbins and Alcarez, they drove around, drinking, before they decided to buycocaine from Graziano. Speed further testified that the five occupants of theSUV—including defendant—decided to steal drugs and money from Graziano,based on a suggestion originally made in jest by Alcarez, and to divide any proceeds equally.According to Speed, the plan was for Smith, Cobbins, Alcarez and himself to enter Graziano'shouse while defendant, who did not want to enter the home, waited in the car and acted as agetaway driver. Speed asserted that the plan did not involve the use of weapons and that none ofthem was armed during the conversation. He said that defendant parked the car down a hill fromGraziano's house near an adjacent property and that he and the other codefendants donnedbandanas and latex gloves in defendant's presence before exiting the SUV. Speed explained thathe and the other codefendants broke into Graziano's house and took money and cocaine fromvarious places in the house while [*3]they held the four occupantsof the house using weapons that they picked up at the scene. According to Speed, when policeofficers arrived, the four codefendants immediately exited the house and ran to the SUV, wheredefendant was waiting. Speed said that as defendant drove the SUV away, he heard a gunshotcoming from behind the vehicle and later became aware that they were being pursued by a policevehicle. Speed further testified that defendant drove the SUV into a field, where all fiveoccupants jumped out and attempted to flee. Speed admitted that he was apprehended shortlyafter leaving the vehicle.
Despite his testimony that he did not know of the plan for his codefendants to enterGraziano's residence for the purpose of stealing drugs and money, defendant's own testimony issufficient to corroborate Speed's testimony. Defendant admitted that, during the night in question,he drove a white SUV he had borrowed from a friend, that he picked up Cobbins, Alcarez, Smithand Speed and that the five of them consumed alcohol at Speed's house. Defendantacknowledged that the codefendants engaged in various conversations as he drove, but claimedthat he was not listening because he was mostly on his phone during that time. He said that hedrove to Graziano's house because Speed wanted to pick something up from her, but denied thathe was aware of, or took any part in, any conversation about breaking into her house or stealingfrom her. Defendant admitted that he parked nearby, at Speed's instruction, and that thecodefendants exited the vehicle together and walked up the hill toward the house, but he deniedseeing any of them cover their faces with a mask or bandana or wear gloves. Defendant furthertestified that he had originally parked the SUV "sideways across the driveway," but subsequentlyrepositioned the vehicle so that it was facing towards the road. Defendant said that after thecodefendants exited the vehicle, he reclined his seat and was taking a nap when they suddenlyreturned, looking panicked and yelling for him to drive away. He said that, as he began to drive,he heard a gunshot. Defendant asserted that he drove the speed limit and, after he became awarethat a police vehicle was following him, he pulled over onto a grassy field, at Speed's suggestion,where he and the codefendants jumped out of the vehicle before it came to a stop and attemptedto flee. Defendant acknowledged that he was arrested a few hours later.
Notably, defendant admitted that he provided the vehicle that was used as the getawayvehicle, that he used the vehicle to drive the codefendants to the scene of the crime, where heparked the vehicle—not at the residence but at a nearby secluded location—orientedtoward the road for easy exit, that he drove the codefendants from the scene after being firedupon while being pursued by the police and that he fled from the vehicle after he drove it off theroad. Such admissions are alone sufficient to corroborate Speed's testimony, notwithstandingdefendant's assertion that he knew nothing of the plan to steal from Graziano (see People vJackson, 44 NY2d 935, 937 [1978]; People v Keitt, 42 NY2d 926, 927 [1977];People v Spencer, 152 AD3d at 866; People v Gage, 259 AD2d 837, 839-840[1999], lv denied 93 NY2d 924 [1999], lv denied upon reconsideration 93 NY2d970 [1999]).
Moreover, numerous details in Speed's testimony were also corroborated by the testimony ofadditional nonaccomplice witnesses. Graziano testified that she was in her home on the night inquestion when she heard breaking glass and realized that someone was breaking into her home.She was able to call 911 before four men forced their way into her home, where they restrainedher and the other three occupants and fled when the police arrived, taking cash with them. Theother three persons present in Graziano's home during the incident each testified consistentlywith Graziano's account. Kris Bauhoff, a Deputy Sheriff with the Columbia County Sheriff'sOffice who responded to the 911 call, testified that when he arrived at the property, he observed ablack male wearing a bandana inside the house, and that when he announced his presence, fourindividuals fled from the house and ran down a hill where they entered the SUV. Notably,Bauhoff testified that, as the vehicle sped toward him, he fired a single shot. Melanie Dale, aninvestigator with the State Police, testified that she pursued the SUV, at speeds of up to [*4]80 miles per hour, and that after it left the road and became stuck ina pond, she saw two or three individuals fleeing on foot and two individuals in the pond, whowere promptly arrested. While it would not have been unreasonable for the jury to acquitdefendant if they credited his version of events—that he had no knowledge of thecodefendants' intentions or illegal actions inside Graziano's house—when we view theevidence in a neutral light and defer to the jury's credibility determinations, we conclude that theverdict finding that defendant engaged in the crimes of burglary in the second degree and robberyin the third degree, as an accomplice, was not against the weight of the evidence.
Defendant's argument that County Court erred when it denied his motion to dismiss theindictment lacks merit. Defendant contends that Marcus Walthour, an investigator with the StatePolice, changed the meaning of the statements given by three codefendants when he paraphrasedthem while testifying before the grand jury. In that regard, he asserts that Walthour's statementthat the codefendants told him that defendant picked them up so that they could "rob a house fordrugs and money" erroneously implied that defendant shared the intent to commit burglary androbbery at Graziano's residence, and further asserts that there was no other evidence ofdefendant's intent before the grand jury. However, inasmuch as we have found that defendant'sconviction was not against the weight of the evidence, it was necessarily supported by legallysufficient evidence (see People vGaston, 147 AD3d 1219, 1220 n 2 [2017]). Thus, defendant's challenge to the grand juryproceeding, which involves the sufficiency of the evidence presented to the grand jury, isprecluded (see id.; People v Marks, 198 AD2d 542, 543 [1993], lv denied82 NY2d 898 [1993]; People v Bey, 179 AD2d 905, 906-907 [1992], lv denied 79NY2d 918 [1992], lv denied upon reconsideration 79 NY2d 1046 [1992]).
Next, we consider defendant's challenge to County Court's Molineux andSandoval rulings. At a brief combined Molineux/Sandoval hearing heldimmediately prior to jury selection, defendant opposed the People's request to use defendant's2009 conviction for burglary in the third degree, under Molineux, as proof of defendant'sintent to commit the instant crimes and, under Sandoval, to challenge defendant'scredibility by showing that he had engaged in conduct that placed his own interests above thoseof society. The court found that the probative value of the conviction outweighed the prejudicialeffect and, therefore, determined that the People could use the prior conviction—but notthe underlying facts—for both purposes.
"The Molineux rule requires that evidence of a defendant's prior bad acts or crimes beexcluded unless it is probative of a material issue other than criminal propensity and its probativevalue outweighs the risk of prejudice to the defendant" (People v Billups, 45 AD3d 1176, 1177 [2007] [citations omitted]).Although defendant's intent was at issue, given his defense that he was an innocent bystanderwho had no knowledge that the codefendants planned to rob Graziano when he drove them to herresidence, the prior conviction was of limited probative value with respect to defendant's intentbecause the prior conviction arose from an incident that was not similar to the charged conduct.The prior burglary did not involve a robbery, but, rather, arose from an incident during whichdefendant entered the residence of another with the intent to assault an occupant. Moreover,Speed's testimony, if believed, was sufficient to permit the jury to find that defendant had therequisite intent to the commit burglary and robbery. Accordingly, the evidence that defendant hadcommitted a prior burglary would serve only to demonstrate that defendant had a propensity tocommit burglary and, therefore, the court should have determined that the prior conviction wasinadmissible as proof of defendant's intent (see id.; see also People v Ball, 154 AD3d 1060, 1064 [2017]).
County Court also erred in its Sandoval ruling. Although the crime was not tooremote [*5]to be relevant and the nature of the conviction wasprobative of defendant's credibility, allowing the prior crime to be identified as burglaryimproperly suggested that defendant had a propensity to commit one of the crimes with which hewas charged (cf. People v Keener,152 AD3d 1073, 1074 [2017]; People v Mould, 143 AD3d 1186, 1188 [2016], lv denied28 NY3d 1187 [2017]; People vHenderson, 22 AD3d 883, 884 [2005], lv denied 6 NY3d 776 [2006]).[FN*] We conclude, however, that thecourt's errors with respect to its Molineux and Sandoval rulings were harmless,because the evidence of defendant's guilt was overwhelming and there is no significantprobability that defendant would have been acquitted in the absence of the errors (see People v Sparks, 29 NY3d932, 935 [2017]; People vCastillo, 151 AD3d 1802, 1803 [2017], lv denied 30 NY3d 978 [2017]; People v Yu-Jen Chang, 92 AD3d1132, 1135-1136 [2012]).
Defendant's contention that County Court erred by failing to instruct the jury that thetestimony of accomplices must be corroborated lacks merit. The record reflects that trial counseland defendant requested that the court not give the charge as they were concerned that referringto Speed as an "accomplice" would confuse the jury in light of the fact that defendant steadfastlyclaimed that he was an unwitting participant who was unaware of the codefendants' plan to robGraziano. Reversal is not warranted where, as here, a defendant requests that the charge onaccomplice testimony not be given for strategic reasons (see People v Hines, 24 AD3d 964, 966 [2005], lv denied 6NY3d 834 [2006]; People v Mahan, 195 AD2d 881, 882 [1993]).
We also reject defendant's argument that he was denied the effective assistance of counsel.Defendant failed to establish the absence of a strategic reason for counsel's decision to requestthat County Court not give an accomplice testimony charge (see People v Thorpe, 141 AD3d 927, 934-935 [2016], lvdenied 28 NY3d 1031 [2016]). Similarly, counsel's failure to preserve defendant's legalsufficiency argument does not constitute ineffective assistance of counsel, especially in light ofour determination that the conviction was not against the weight of the evidence (see People v Place, 152 AD3d 976,980 [2017]; People v Colburn, 123AD3d 1292, 1297 [2014], lv denied 25 NY3d 950 [2015]; People v Harvey, 96 AD3d 1098,1100 [2012], lv denied 20 NY3d 933 [2012]).
We are not persuaded by defendant's argument that the sentence was harsh and excessive.First, the fact that Speed received a lesser sentence for the same crimes does not warrantreduction in defendant's sentence (see People v Harvey, 96 AD3d at 1101). Twoadditional codefendants, Smith and Alcarez, were sentenced, like defendant, to aggregate prisonterms of 12 years (People v Alcarez,141 AD3d 943, 944 [2016], lv denied 28 NY3d 1025 [2016]; People v Smith, 140 AD3d 1396,1397 [2016], lv denied 28 NY3d 936 [2016]). Further, defendant has not takenresponsibility for his actions, has a prior burglary conviction for which he was on probation at thetime of the instant offense and has failed to demonstrate any extraordinary circumstances or anabuse of discretion warranting a reduction of the sentence in the interest of justice (see Peoplev Smith, 140 AD3d at 1398; People v Harvey, 96 AD3d at 1101). Finally, asdefendant concedes, his challenge to County Court's revocation of probation [*6]and resentencing on the 2009 burglary conviction lacks merit inlight of our affirmance of the judgment of conviction.
Peters, P.J., Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Based on County Court'serroneous ruling, defendant determined that it was necessary to offer an explanation of theincident underlying the prior conviction during his direct testimony. The court could havepermitted the People to cross-examine defendant by asking about his 2009 conviction for a classD felony without naming the crime of burglary or referring to the underlying facts (see e.g. People v Henry, 129 AD3d1334, 1335 [2015], lv denied 26 NY3d 930 [2015]).