| People v Young |
| 2018 NY Slip Op 02673 [160 AD3d 1206] |
| April 19, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v John Young, Appellant. |
Todd G. Monahan, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Schenectady County (Sypniewski,J.), rendered January 15, 2016, upon a verdict convicting defendant of the crimes of burglary inthe third degree, criminal mischief in the second degree and petit larceny.
In July 2014, Rehabilitation Support Services (hereinafter RSS), a business located in theCity of Schenectady, Schenectady County, reported a burglary to the City of Schenectady PoliceDepartment. The suspect stole $40 in petty cash and caused property damage to exterior andinterior doors in the amount of $5,172.05. During the resulting police investigation, bloodevidence was discovered on one of the damaged doors and sample swabs were collected and sentfor DNA analysis. Defendant, who worked for RSS in July 2014, was arrested for the RSSburglary in March 2015. After testifying before a grand jury, defendant was charged byindictment with one count each of burglary in the third degree, criminal mischief in the seconddegree and petit larceny. In November 2015, a jury convicted defendant of all three counts anddefendant now appeals. At trial, defendant did not dispute the presence of his blood on thedamaged door, but explained that the blood must have transferred there when, after being injuredat work, he entered the room to get a bandage.
Initially, we find that the verdict was not against the weight of the evidence. Where, as here,a different verdict would not have been unreasonable, we must "like the trier of fact below,weigh the relative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony" to determine whether the jury gave "the [*2]evidence the weight it should be accorded" (People v Romero, 7 NY3d 633,643 [2006] [internal quotation marks and citations omitted]; accord People v Babcock, 152 AD3d 962, 965 [2017], lvdenied 30 NY3d 947 [2017]). "A person is guilty of burglary in the third degree when he [orshe] knowingly enters or remains unlawfully in a building with intent to commit a crime therein"(Penal Law § 140.20). "A person is guilty of criminal mischief in the second degreewhen with intent to damage property of another person, and having no right to do so nor anyreasonable ground to believe that he [or she] has such right, he [or she] damages property ofanother person in an amount exceeding [$1,500]" (Penal Law § 145.10). A guiltyverdict of petit larceny is supported by evidence that an individual "steals property" (Penal Law§ 155.25).
At trial, the project manager at RSS testified that petty cash was kept locked in a desk drawerin an office that he shared with another employee who was a supervisor at RSS (hereinafter thesupervisor). The supervisor testified that on July 1, 2014, he worked from 6:00 a.m. to 5:30 p.m.and defendant worked from 7:30 a.m. to 3:00 p.m. The supervisor recalled that he was the lastperson to leave the building; he turned off the lights and locked the office door, and there wasnothing remarkable or abnormal about the condition of his office doorway before he left thebuilding. The next morning, when the supervisor arrived at 5:00 a.m., the building was dark but,when he turned on the lights and began to walk towards the office, he noticed that the door wasopen. Concerned that someone might still be in the building, he left and contacted the police. Thesupervisor testified that he later discovered that the office door was broken, there were redsmudges in the doorway, the desk drawer was pried open and there was change strewn across theproject manager's desk. The project manager testified that when he arrived at work after learningabout the break-in, he discovered that approximately $40 was missing from his desk drawer.Further, the project manager testified that the amount to repair the property damaged during thebreak-in totaled $5,172.05.
The People submitted video images captured by a security camera located across the streetfrom RSS and four cameras located at RSS. Both the supervisor and the project manager testifiedthat they reviewed the footage with the police and concluded that the individual depicted on thevideo prying open the door to RSS resembled defendant and four other RSS employees. A policeofficer testified that when he arrived at RSS the morning of the break-in, he noticed what hebelieved to be blood on the doorway; he swabbed the substance and placed it with the evidencecollected at the scene. A forensic scientist confirmed that the substance was blood and that it wassent for entry into the Combined DNA Index System. The testimony and evidence establishedthat defendant's DNA matched the blood sample taken from the doorway at RSS after thebreak-in. Defendant testified that his blood may have transferred to the doorway because he cuthis hand and he went into the office to get a bandage, but there was no evidence to documentsuch an injury. In our view, "an acquittal would not have been unreasonable" (People v Danielson, 9 NY3d 342,348 [2007]). When we give the requisite deference to the jury's ability to observe the witnesses(see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]),our independent review of the evidence in a neutral light leads us to conclude that the verdict wasnot against the weight of the evidence (see People v Morrison, 127 AD3d 1341, 1343 [2015], lvdenied 26 NY3d 932 [2015]).
Next, defendant claims that County Court should have stricken testimony by an investigatorwith the Schenectady Police Department that defendant may have intentionally misstated hisname when he provided the DNA sample via buccal swab to the investigator. Indisputably, thecontainer where the swab was placed was labeled "John T. Kelley" not "John T. Young." Theinvestigator's testimony established that this container was immediately placed into a larger boxthat was labeled with defendant's correct name and date of birth. With the exception ofdefendant's last name, the first container was labeled with the same identifying information as[*3]was included on the larger box. During his directexamination, the investigator testified that he could "speculate" with regard to why he recordedthe wrong name on the container, and the court sustained trial counsel's objection to suchspeculation. During cross-examination, trial counsel asked the investigator whether he wrote thewrong name because defendant "misrepresent[ed]" who he was. The investigator responded,"Probably," before immediately thereafter conceding that it "could [have] been [an error]" on hispart. In context, defendant's claim that the conviction must be reversed because the investigator'stestimony was unduly prejudicial is meritless. The challenged testimony established, if anything,that the investigator made a mistake, and we perceive no basis for a finding that such testimonycould have "unfairly prejudice[d] [defendant] or misl[ed] the jury" (People v Scarola, 71NY2d 769, 777 [1988]; see People vHeiserman, 127 AD3d 1422, 1423-1424 [2015]).
Next, defendant contends that County Court should not have granted the People's motion tocompel the production of a DNA sample via a buccal swab test because it was made more than45 days after defendant's arraignment (see CPL 240.90 [1]). Because the record does notindicate that defendant opposed the motion or that he objected to the court order, this contentionis not preserved for our review (see CPL 470.05 [2]). In any event, in the absence of anyclaim or indication in the record that defendant was prejudiced by the delay, the argument iswithout merit (see People v Vieweg,155 AD3d 1305, 1308 [2017], lv denied 30 NY3d 1121 [2018]; People v Ruffell, 55 AD3d 1271,1272 [2008], lv denied 11 NY3d 900 [2008]).
Defendant next argues that County Court failed to properly evaluate whether a juror was"grossly unqualified" (CPL 270.35 [1]). Generally, a grossly unqualified juror—such as ajuror who falls asleep and misses a significant portion of the trial—should be replaced (see People v Robinson, 121 AD3d1179, 1181 [2014]; People vBuel, 53 AD3d 930, 931 [2008]). To determine whether a juror should be replaced, thecourt should "conduct[ ] a probing, tactful inquiry into the specific circumstances" to assesswhether he or she "possesses a state of mind which would prevent the rendering of an impartialverdict" (People v Reichel, 110AD3d 1356, 1358 [2013] [internal quotation marks, brackets and citations omitted], lvdenied 22 NY3d 1090 [2014]). The record here confirms that twice during the trial, a jurorwas observed with her eyes closed. Each time, counsel requested a bench conference and allagreed that it was sufficient for the court to allow a break in the trial and to remind all the jurorsthat it was important to pay attention and focus on the evidence. Because defendant consented tothis resolution during the trial and failed to move to discharge the juror, defendant has notpreserved this issue for our review (seePeople v Pearson, 151 AD3d 1455, 1458 [2017], lv denied 30 NY3d 982[2017]).[FN*] Similarly, ourreview of the record confirms that defendant's claim that the court erred in its response to a jurynote is not preserved for our review (seePeople v LaDuke, 140 AD3d 1467, 1469 [2016]).
In our view, defendant received the effective assistance of counsel. The standard under theNY Constitution—which is more stringent than the federal standard—requiresdefendant to establish that trial counsel "failed to provide meaningful representation and thusdeprived defendant of a fair trial" (People v Clark, 28 NY3d 556, 562, 565 [2016]). "An ineffectiveassistance of counsel claim will fail so long as the evidence, the law, and the circumstances of aparticular case, viewed in totality and as of the time of the representation, reveal that the attorneyprovided meaningful representation" (People v Rosario, 157 AD3d 988, 993 [2018][*4][internal quotation marks and citations omitted]). "Meaningfulrepresentation simply requires that defense counsel's efforts reflect that of a reasonablycompetent attorney" (People vColey, 129 AD3d 1327, 1329 [2015] [citations omitted], lv denied 26 NY3d 927[2015]).
Defendant's claim is based on trial counsel's failure to preserve certain arguments and thedecision to call a witness who, in defendant's view, offered no productive testimony on hisbehalf. Although arguably, with hindsight, one could conclude that trial counsel could have beenmore effective, this is not the standard (see People v Benevento, 91 NY2d 708, 712[1998]; People v Bullock, 145AD3d 1104, 1107 [2016]). Rather, when we review the record as a whole, we find that trialcounsel had a "reasonable and legitimate strategy under the circumstances and evidencepresented," and we therefore conclude that defendant has not established that he receivedineffective assistance (People vPerry, 148 AD3d 1224, 1224-1225 [2017] [internal quotation marks and citationomitted]; see People v Caban, 5NY3d 143, 152 [2005]).
Finally, we reject defendant's claims that County Court abused its discretion by failing toallow him to participate in the judicial diversion program and that the sentence imposed washarsh and excessive. First, because defendant never requested to participate in judicial diversion,he may not now fault the court for failing to exercise its discretionary authority to permit suchparticipation (see CPL 216.05 [1]). Further, as the court noted, defendant failed todemonstrate that he sought or received any benefit from programs offered in the past; thus,assuming without deciding that defendant was eligible for judicial diversion, the record fails to"reflect any basis upon which to believe that the court would have deemed it [to be] appropriatein view of defendant's extensive criminal history" (People v Driscoll, 147 AD3d 1157, 1159 [2017], lv denied29 NY3d 1078 [2017]). As noted by County Court, defendant's prior criminal history, datingfrom 1975 to 2009, includes five felony convictions and he had "basically . . . beena burglar [his] entire life." In our view, we do not find that defendant has shown any"extraordinary circumstances or any abuse of discretion warranting a modification" of thesentence imposed (People vMeddaugh, 150 AD3d 1545, 1548 [2017]).
Garry, P.J., Egan Jr., Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:To the extent that defendantclaims that this issue was preserved by the CPL 330.30 motion to set aside the verdict, wedisagree (see People v Johnson, 92 NY2d 976, 978 [1998]).