| People v Edmonds |
| 2018 NY Slip Op 07202 [165 AD3d 1494] |
| October 25, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Demmca L. Edmonds, Appellant. |
Kevin A. Jones, Ithaca, for appellant.
Patrick A. Perfetti, District Attorney, Cortland (Elizabeth McGrath of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Cortland County (Campbell, J.),rendered August 4, 2016, convicting defendant following a nonjury trial of the crimes of burglaryin the third degree, petit larceny (two counts) and conspiracy in the sixth degree.
Following allegations that defendant, together with three others, stole merchandise from Rue21 and Walmart, defendant was charged by amended indictment with burglary in the thirddegree, two counts of petit larceny and conspiracy in the sixth degree.[FN1] The matter ultimately proceeded to a nonjurytrial, after which defendant was convicted as charged and sentenced, as a second felony offender,to an aggregate prison term of 3 to 6 years. Defendant now appeals.
Defendant argues that her conviction for burglary in the third degree is not supported bylegally sufficient evidence and is against the weight of the evidence. A defendant is guilty ofburglary in the third degree "when he [or she] knowingly enters or remains unlawfully in abuilding with intent to commit a crime therein" (Penal Law § 140.20). In anordinary prosecution for burglary in the third degree, the People need only prove that thedefendant intended to commit a crime in the building, not the exact crime intended (seePenal Law § 140.20; People v Barnes, 50 NY2d 375, 379 n 3 [1980];People v Mackey, 49 NY2d 274, 279 [1980]). However, where the Peopleparticularize—through a bill of particulars or otherwise—the precise crime that thedefendant intended to commit, the People are thereafter obligated to prove that narrower theoryof prosecution (see People v Shealy, 51 NY2d 933, 934 [1980]; People v Barnes,50 [*2]NY2d at 379 n 3; People v Kolempear, 267 AD2d327, 327-328 [1999], lv denied 95 NY2d 799 [2000]).
Here, the People specified in their bill of particulars that, upon entering Walmart, defendantintended to commit grand larceny in the fourth degree, which requires proof that defendant stoleproperty and that the value of that stolen property exceeded $1,000 (see Penal Law§ 155.30 [1]). Thus, by their own limitation, the People had to prove that defendantknowingly entered Walmart unlawfully with the intent to steal over $1,000 worth of property(see Penal Law §§ 140.20, 155.30 [1]). To that end, the Peopleintroduced into evidence three notices of restriction previously issued to and signed by defendant,which demonstrated that, at the time that defendant entered Walmart, she had been banned fromall Walmart property and put on notice that her entry onto Walmart property would place her atrisk of arrest and prosecution for criminal trespass. The People also presented testimony frommembers of the Cortland County Sheriff's Department establishing that a vehicle in whichdefendant was a passenger was stopped by law enforcement shortly after a reported larceny atRue 21. As a result of that traffic stop, various items were recovered from the vehicle, includinga large plastic green tote bin filled with clothing and other miscellaneous items, three children'sscooters, a Fisher Price infant to toddler rocker and a polka dot gift bag. These recovered itemswere identified as store merchandise by an asset protection associate of Walmart.[FN2]
Store surveillance footage from the day in question, which was admitted into evidence,showed defendant—who was dressed in brightly colored striped pants—enter thestore with three other individuals, including her adult daughter. The footage shows defendantcarrying a large plastic green tote bin with its lid off and, thereafter, pushing a cart containingvarious unidentifiable merchandise. Shortly thereafter, her daughter is seen pushing a cartcontaining a closed green tote bin (presumably the same tote that defendant had earlier), a babyoutfit and a large boxed item underneath. As shown in the footage, defendant and her daughterthen enter the garden department pushing their separate carts when defendant encounters aWalmart employee. The daughter is then seen leaving the garden department with her cart, anddefendant surrenders her cart to the employee. The footage shows defendant leave the storeshortly thereafter, and her daughter subsequently push the cart with the closed green tote bin outof the store. Defendant later reenters the store and can be seen on the store footage pushing a cartwith what appears to be three scooters and a polka dot gift bag. The footage depicts defendantultimately pushing that cart out of the store. The asset protection associate testified that heviewed the store surveillance footage from the day in question and that, based upon his review ofthat footage, as well as sales receipts from that day, he determined that defendant and hercompanions had not paid for the recovered Walmart merchandise.
In our view, defendant's entry onto Walmart property while subject to several notices ofrestriction banning her from the store, along with her actions in the store, as depicted in thesurveillance footage, provide sufficient proof from which County Court could conclude by avalid line of reasoning and permissible inferences that defendant knowingly entered Walmartunlawfully with the intent to commit grand larceny in the fourth degree (see People v Pearson, 163 AD3d446, 447 [2018]; People vEllison, 107 AD3d 1580, 1580 [2013], lv denied 21 NY3d 1073 [2013];People v McCants, 194 AD2d 301, 302 [1993], lv denied 82 NY2d 722 [1993];see generally People v Zokari, 68AD3d 578, 578 [2009], lv denied 15 NY3d 758 [2010]). The nature and type ofitems ultimately stolen, taken together with defendant's apparent attempt to leave the gardendepartment with numerous other unidentifiable items, gives rise to the permissible inference thatdefendant's intent was to abscond with as much merchandise as possible. Accordingly,defendant's conviction for burglary in the third degree, as pleaded by the People, is supported bylegally sufficient evidence. Similarly, while it would not have been unreasonable for CountyCourt to have reached a different conclusion, we find that defendant's burglary conviction issupported by the weight of the credible evidence (see People v Pearson, [*3]163 AD3d at 447; People v Brunson, 294 AD2d 104, 104[2002], lv denied 98 NY2d 695 [2002]).
We also reject defendant's contention that the Walmart store surveillance footage was notproperly authenticated and, thus, should not have been admitted into evidence. "[A] videotapemay be authenticated by the testimony of a witness to the recorded events or of an operator orinstaller or maintainer of the equipment that the videotape accurately represents the subjectmatter depicted" (People v Patterson, 93 NY2d 80, 84 [1999]; accord People v Oquendo, 152 AD3d1220, 1221 [2017], lv denied 30 NY3d 982 [2017]). Here, the Walmart assetprotection associate testified that, in the normal course of business, Walmart maintained andoperated various surveillance cameras throughout the store, which would continuously captureand record the events taking place in the store in real time and save that recorded footage on asecure server. He testified that, as part of his job, he would view the recorded surveillancefootage and, where required, copy the relevant footage onto CDs and give the footage to lawenforcement, as he did here. He further testified that the stored footage was password protectedand that members of the public were unable to access or manipulate the footage. Heunequivocally stated that there were protections in place that safeguarded the authenticity of thesurveillance footage. Under these circumstances, we find the challenged surveillance footage tohave been adequately authenticated (see People v Oquendo, 152 AD3d at 1221; People v Cabrera, 137 AD3d 707,707-708 [2016], lv denied 27 NY3d 1129 [2016]). Any gaps in the chain of custody wentto the weight that was to be accorded to the video recordings, not their admissibility (seePeople v Ely, 68 NY2d 520, 528 [1986]; People v Oquendo, 152 AD3d at1221).
Finally, we find no merit to defendant's argument that her burglary conviction should bereversed, and that charge dismissed from the amended indictment, because County Courtpermitted the People to present evidence of the facts and circumstances leading to the notices ofrestriction banning her from Walmart. Evidence of uncharged crimes or prior bad acts isinadmissible unless it is probative of a material issue other than criminal propensity and itsprobative value outweighs the risk of prejudice (see People v Cass, 18 NY3d 553, 559 [2012]; People v Billups, 45 AD3d 1176,1177 [2007]). Here, although the disputed evidence was relevant to the issue of whetherdefendant entered Walmart with the intent to steal more than $1,000 worth of merchandise (see People v Carter, 50 AD3d1318, 1321 [2008], lv denied 10 NY3d 957 [2008]), evidence of prior misconduct toprove intent is unnecessary where intent may be easily inferred from the commission of the actitself (see People v Vargas, 88 NY2d 856, 858 [1996]; People v Alvino, 71 NY2d233, 242 [1987]). Arguably, defendant's intent to commit grand larceny in the fourth degree canbe easily inferred solely from defendant's actions while in the store, without evidence of the factsand circumstances leading to the notices of restriction[FN3] (see People v Athanasatos, 40 AD3d 1263, 1265 [2007], lvdenied 9 NY3d 872 [2007]; Peoplev Hunter, 32 AD3d 611, 612 [2006]). Nevertheless, any error in permitting evidence ofthe facts and circumstances underlying the notices of restriction was harmless given theoverwhelming evidence of defendant's guilt (see People v Athanasatos, 40 AD3d at1265). Moreover, because County Court was the finder of fact, it was capable of disregarding anyunduly prejudicial aspect of the evidence (see People v Moreno, 70 NY2d 403, 406[1987]; People v Rodriguez, 153AD3d 1178, 1178 [2017], lv denied 30 NY3d 1108 [2018]; People v Wise, 46 AD3d 1397,1399 [2007], lv denied 10 NY3d 872 [2008]).
Egan Jr., J.P., Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Defendant was initially chargedwith burglary in the third degree, grand larceny in the fourth degree, one count of petit larcenyand conspiracy in the sixth degree. However, prior to trial, the People amended theindictment—with defendant's consent—by replacing the grand larceny charge withan additional petit larceny charge.
Footnote 2:The evidence demonstrated thatadditional clothing was recovered from the vehicle, and testimony from a Rue 21 employeeestablished that such clothing was sold at Rue 21.
Footnote 3:The notices of restriction,themselves, were relevant to the issue of whether defendant knowingly entered Walmartunlawfully—elements of the crime of burglary in the third degree (see Penal Law§ 140.20; People vWilson, 96 AD3d 1470, 1470 [2012], lv denied 19 NY3d 1002 [2012]).