| People v Cole |
| 2018 NY Slip Op 04391 [162 AD3d 1219] |
| June 14, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Terrance Cole, Appellant. |
Matthew C. Hug, Albany, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered April 15, 2015, upon a verdict convicting defendant of the crime of burglary in thesecond degree (four counts).
Defendant was charged by indictment with four counts of burglary in the second degree inconnection with four home invasions that occurred in the City of Albany between March 4, 2014and April 2, 2014. Following a Mapp hearing, County Court suppressed evidence of ahammer that was seized from defendant's residence, concluding that the hammer was outside thescope of the warrant that authorized the search and, further, that seizure of the hammer was notjustified by the plain view doctrine.
Approximately one month later, the People moved to reargue, contending that the court erredwith respect to its application of the plain view doctrine. County Court granted the motion and,upon reargument, reversed its initial suppression decision, finding that the hammer wasadmissible. Following a jury trial, defendant was convicted as charged and was sentenced, as apersistent violent felony offender, to concurrent prison terms of 20 years to life for eachconviction. Defendant appeals.
Defendant argues that the People's motion to reargue should have been denied because it wasuntimely and, further, on the basis that the plain view doctrine was not raised at the Mapphearing. Initially, defendant failed to establish that the motion was untimely because the record[*2]does not contain evidence that the initial order suppressingthe evidence was served with notice of entry.[FN1] Defendant's argument that the motion shouldnot have been granted because the plain view doctrine was not considered on the original motionis similarly unavailing. A motion to reargue may be based upon matters of law allegedlymisapprehended in determining the prior motion (see CPLR 2221 [d] [2]). In its initialorder, County Court noted that seizure of the hammer was outside the scope of the warrantbecause the hammer was not among the items listed in the warrant, and the court consideredwhether there was evidence to support a claim that seizure of the hammer was justified by theplain view doctrine. The People moved to reargue on the basis that County Courtmisapprehended the plain view doctrine by relying upon case law that had been expresslyoverruled by the Supreme Court of the United States. Thus, County Court properly granted themotion to reargue.
On reargument, County Court properly concluded that the hammer was admissible under theplain view doctrine. "[L]aw enforcement officers may properly seize an item in 'plain view'without a warrant if (i) they are lawfully in a position to observe the item; (ii) they have lawfulaccess to the item itself when they seize it; and (iii) the incriminating character of the item isimmediately apparent" (People v Brown, 96 NY2d 80, 89 [2001]). All three elementswere satisfied here. The hammer was found upon a search of defendant's home that wasconducted pursuant to a valid warrant that authorized search of the entire premises for itemsstolen in the various burglaries. As noted by County Court, the nature of the items listed in thewarrant—which included small items such as jewelry—justified a search of thecontents of the premises, including containers. Thus, the police officers who conducted thesearch were lawfully in position to observe the hammer and had lawful access to it when theyseized it. Further, the incriminating character of the hammer was immediately apparent based onthe fact that forcible entry was made to each of the four homes that were burglarized.
Defendant also contends that County Court improperly denied his motion to precludeidentification evidence given by Dora Febus because he was never provided with notice pursuantto CPL 710.30. We agree. CPL 710.30 (1) (b) provides, in relevant part, that within 15 days ofarraignment, the People must serve upon the defendant notice of their intent to offer at trial"testimony regarding an observation of the defendant either at the time or place of thecommission of the offense or upon some other occasion relevant to the case, to be given by awitness who has previously identified him or her or a pictorial, photographic, electronic, filmedor video recorded reproduction of him or her as such."[FN2] "Not only is the statutory mandate plain[,] butthe procedure is simple. The People serve their notice upon [the] defendant, the defendant has anopportunity to move to suppress and the court may hold a Wade hearing. If the Peoplefail to provide notice, the prosecution may be precluded from introducing such evidence [*3]at trial" (People v Pacquette, 25 NY3d 575, 579 [2015] [internal quotationmarks, brackets, ellipsis and citations omitted]). The purposes of the notice requirement are toallow for preparation of a defense and to permit orderly resolution of the admissibility of theidentification testimony prior to trial (see id.).
During her direct examination, Febus testified that approximately one week prior to theburglary, she answered a ringing doorbell to find a stranger who asked for a person who wasunknown to her. The individual left before she could respond to his inquiry. She described theindividual as an older black man with long hair who was carrying a satchel. Approximately 10days after the burglary, Febus went to the police station and identified various objects that hadbeen taken from her residence. While she was at the police station, she asked a police officerabout the identity of the individual who had broken into her residence, and the officer provideddefendant's name. She then asked the officer if she could see a picture of the individual, and theofficer responded that it "was online on the Albany Police Department's [Facebook page]." Febustestified that she returned home and accessed the Facebook page. Over defendant's objection,County Court permitted Febus to continue her testimony regarding her prior identification ofdefendant. In that regard, she testified that when she accessed the police department's Facebookpage, she saw a number of mugshots and immediately identified defendant as the person who hadknocked on her door approximately one week prior to the burglary.
We are not presented with the issue of whether maintenance by a police department of aFacebook page or website with mugshot photos of arrested individuals—or referral ofindividuals to such a website—are, without more, police-initiated identificationprocedures because, in this case, the police officer also provided Febus with defendant's namewhen he told her that she could view a picture of the person who had been arrested forburglarizing her home on the police department's Facebook page. The fact that she had beenprovided with defendant's name could have influenced her identification of defendant when shesubsequently viewed the Facebook page. This, in our view, was sufficient police involvement toinvoke the notice requirement of CPL 710.30 (1) (see e.g. People v Marshall, 26 NY3d 495, 505-506 [2015]; People v Clay, 147 AD3d 1499,1501 [2017], lv denied 29 NY3d 1030 [2017]; People v Friday, 114 AD2d 970,971 [1985]). Inasmuch as notice was not provided, County Court erred in permitting Febus toidentify defendant as the person who came to her home prior to the burglary. However, the errorwas harmless because Febus' identification of defendant was not necessary to his conviction inlight of the other significant evidence linking him to the four burglaries and associated thefts,including his sale of items that had been stolen and recovery of other items upon a lawful searchof his home (see People v Pacquette, 25 NY3d at 580).
Defendant next contends that County Court erred when it gave the jury a recent, exclusivepossession charge with respect to counts 1, 2 and 3 of the indictment because he was not found inpossession of the stolen items until several weeks after these three burglaries occurred.[FN3] "Recent, unexplained, exclusivepossession of the fruits of a burglary may raise an [*4]inferenceof guilt sufficient to support a conviction of burglary" (People v Measheaw, 108 AD2d952, 953 [1985] [citations omitted]; see People v Baskerville, 60 NY2d 374, 382 [1983]).The recent, exclusive possession charge, however, "must be tailored to the facts of the particularcase" (People v Baskerville, 60 NY2d at 382), because "[t]here are no precise definitionsof what constitutes recent and exclusive possession" (People v Schillaci, 68 AD2d 124,126 [1979]). In that regard, although there is no bright-line rule as to when the recent, exclusivepossession charge is improper, a one-week period is not so long a period as to be improper as amatter of law (see People v Combo, 275 AD2d at 937), and "the longer the periodbetween the larceny and the discovery of [the] defendant's possession of the fruits of the crime,the stronger the circumstantial evidence must be before the inference of guilt may be drawn"(People v Schillaci, 68 AD2d at 126).
Here, there was sufficient circumstantial evidence to permit the recent, exclusive possessioncharge to be given on all four counts of the indictment. Notably, items stolen from each of thefour locations and the hammer, which could have been used to facilitate the forced entries, werefound together upon a search of defendant's residence, and defendant sold items stolen duringthree of the burglaries to pawnshops. The burglaries all occurred in close proximity to eachother—and to defendant's residence—within less than one month. Further, theburglaries were all conducted in a similar fashion; in each case, access was gained by forcingopen a door and the interior of the residence was ransacked in a search for items that could beeasily transported and sold.
Defendant contends that the verdict was not supported by legally sufficient evidence and wasagainst the weight of the evidence. "When considering a challenge to the legal sufficiency of theevidence, we view the evidence in the light most favorable to the People and evaluate whetherthere is any valid line of reasoning and permissible inferences which could lead a rational personto the conclusion reached by the jury on the basis of the evidence at trial and as a matter of lawsatisfy the proof and burden requirements for every element of the crime charged" (People v Robinson, 156 AD3d1123, 1124 [2017] [internal quotation marks and citations omitted], lv denied 30NY3d 1119 [2018]). "A weight of the evidence review requires this Court to first determinewhether, based on all the credible evidence, a different finding would not have been unreasonableand then weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony to determine if the verdict issupported by the weight of the evidence" (People v Perry, 154 AD3d 1168, 1169 [2017] [internal quotationmarks, ellipsis, brackets and citations omitted]).
As relevant here, a person commits burglary in the second degree when "he [or she]knowingly enters or remains unlawfully in a building with intent to commit a crime therein, andwhen . . . [t]he building is a dwelling" (Penal Law § 140.25 [2]). Wemust determine only whether there was legally sufficient evidence connecting defendant to eachof the four burglaries because all of the other elements were established by undisputed evidenceestablishing that personal property was stolen from each dwelling that had been forcibly enteredwithout consent. As previously explained, recent and exclusive possession of the fruits of aburglary may raise an inference sufficient to support a conviction of burglary (see People vMeasheaw, 108 AD2d at 953). The evidence was legally sufficient to support defendant'sconvictions based on the inference of guilt that arose from his possession of property that wasstolen during the burglaries, including his sale of stolen property to two differentpawnshops.
Turning to consideration of the weight of the evidence, a different verdict would not havebeen unreasonable in light of defendant's testimony that he did not commit the burglaries, butcame into possession of the victims' property, which he claimed he did not know was stolen,[*5]when he received it as payment upon the sale of illicit drugs.However, when we view the evidence in a neutral light and give deference to the jury's credibilitydeterminations, we find that the convictions were not against the weight of the evidence in lightof defendant's possession of property stolen during the burglaries and his sale of some of thoseitems to pawnshops.
Finally, we are unpersuaded by defendant's argument that his sentence was harsh andexcessive. We find no abuse of discretion by County Court or extraordinary circumstances thatwould warrant a reduction of his sentence, which falls within the permissible statutory range (see People v Lord, 159 AD3d1283, 1284 [2018]).
McCarthy, J.P., Egan Jr., Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:A motion to reargue must "bemade within [30] days after service of a copy of the order determining the prior motion andwritten notice of its entry" (CPLR 2221 [d] [3]). Although the motion was made more than 30days after the date of County Court's initial order, the lack of evidence regarding service of thatorder precludes a determination of whether the time to move to reargue had expired.
Footnote 2:The amendment of CPL 710.30(1) (b) that was effective on July 1, 2017 (see L 2017, ch 59, § 1, part VVV,§ 6) does not change our analysis.
Footnote 3:Defendant was found inpossession of items stolen during the fourth burglary two days after it occurred and did not objectto the charge being given with respect to count 4. His further contention that County Courtshould have charged the jury that it could also infer that he was merely the knowing possessor ofthe stolen property is unpreserved for review (see People v Combo, 275 AD2d 936, 937[2000], lv denied 95 NY2d 933 [2000]).