| People v Henry |
| 2019 NY Slip Op 05024 [173 AD3d 1470] |
| June 20, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Robert Henry, Appellant. |
Paul J. Connolly, Delmar, for appellant.
Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Warren County (Hall Jr., J.),rendered May 16, 2017, upon a verdict convicting defendant of the crimes of murder in thesecond degree, robbery in the first degree, burglary in the first degree, grand larceny in the fourthdegree (four counts), criminal possession of stolen property in the third degree and unauthorizeduse of a vehicle in the first degree.
In July 2016, defendant was charged by indictment with murder in the second degree,robbery in the first degree, burglary in the first degree, four counts of grand larceny in the fourthdegree, criminal possession of stolen property in the third degree and unauthorized use of avehicle in the first degree based on allegations that defendant and Kevin Chapman entered thevictim's home under false pretenses, restrained the victim before strangling him to death, lootedthe victim's home and stole the victim's Cadillac. After a jury trial, defendant was convicted ascharged and was sentenced, as a persistent violent felony offender, to prison terms of 25 years tolife for his convictions of murder in the second degree, burglary in the first degree and robbery inthe first degree and, as a persistent nonviolent felony offender, to prison terms of 25 years to lifefor his convictions of grand larceny in the fourth degree, criminal possession of stolen property inthe third degree and unauthorized use of a vehicle in the first degree.[FN1] All sentences are to run concurrently, exceptthe sentence imposed for unauthorized use of a vehicle in the first degree, which is to runconsecutively to the sentences imposed on the other convictions. Defendant appeals.
We first consider defendant's contention that County Court committed reversible errorbecause the record fails to establish that the court provided defense counsel with meaningfulnotice of the contents of a jury note. CPL 310.30 provides that, "[a]t any time during itsdeliberation, the jury may request the court for further instruction or information with respect to. . . any . . . matter pertinent to the jury's consideration of the case.Upon such a request, the court must direct that the jury be returned to the courtroom and, afternotice to both the [P]eople and counsel for the defendant, and in the presence of the defendant,must give such requested information or instruction as the court deems proper." The Court ofAppeals has held that "CPL 310.30 imposes two responsibilities on trial courts upon receipt of asubstantive note from a deliberating jury: the court must provide counsel with meaningful noticeof the content of the note, and the court must provide a meaningful response to the jury.Meaningful notice means notice of the actual specific content of the jurors' request. The purposeof this requirement is to give counsel an opportunity to participate in the formation of a responseto the jury's substantive inquiry. . . . [W]hen the trial court fails to provide counselwith meaningful notice of a substantive jury note, a mode of proceedings error has occurred andreversal is required" (People vParker, 32 NY3d 49, 58-59 [2018] [internal quotation marks, brackets and citationsomitted]).
During deliberations, the jury sent a note to County Court that stated: "Repeat Count 1Murder 2nd in whole [and] Define 'In concernt [sic] with.' " The entire record regardingthe jury note consists of the court stating that the note had been marked as a court exhibit and,after informing the jury that it had received the note, the court then stating that "[t]he lawyers andI just discussed it. We decided it was a pretty simple note. You'd like me to repeat theinstructions on Count 1, that's Murder in the Second on a whole, that would include theaffirmative defense. Also define what it means to be acting in concert with. So I'll read that parttoo." There were no objections, and the court proceeded to read the complete instructions,including burden of proof, on murder in the second degree, which included robbery in the seconddegree and its elements, the complete instructions and burden of proof on the affirmativedefense, and the complete instructions and burden of proof on accessorial conduct.
Notably, although the record shows that County Court and counsel engaged in anoff-the-record conference during which the note was discussed, without a record of thediscussion, we have only the court's response to the jury concerning the note. A divided Court ofAppeals has held that meaningful notice is not provided where there is no record indicating thatcounsel was informed of the "precise contents" of the note before the response is given to thejury, or where the trial court paraphrases or summarizes a jury note (People v Parker, 32NY3d at 59; see People v Mack, 27NY3d 534, 542 [2016]). Given the court's statement to the jury that it had an off-the-recordconversation with counsel regarding the note, it would not be unreasonable to believe thatCounty Court had informed counsel of the note's precise contents. However, the record containsno specific indication that the court provided counsel with the precise content of the note beforeit delivered its response to the jury, nor was the note read verbatim on the record before theresponse was given. Thus, the record fails to establish that counsel had the opportunity toparticipate in the formation of the court's response to the jury's substantive inquiry. In that regard,we note that the jury did not specifically refer to "instructions" or the "affirmative defense,"which formed the basis of the court's response to the jury. Thus, on this record, we areconstrained to follow the Court of Appeals' admonition that defense counsel's awareness of theexistence and "gist" of a jury note does not satisfy the "affirmative obligation [of] a trial court tocreate a record of compliance under CPL 310.30 and [People v O'Rama (78 NY2d 270[1991])]" (People v Morrison, 32NY3d 951, 952 [2018] [internal quotation marks and citation omitted]; see People v Walston, 23 NY3d986, 990 [2014]). Inasmuch as the note related solely to count 1 of the verdict sheet (count11 of the indictment) concerning murder in the second degree, defendant's conviction for thiscrime only must be reversed and that count dismissed (see People v Walston, 23 NY3d at990).
As to his remaining convictions, defendant contends that they were not supported by legallysufficient evidence and were against the weight of the evidence. "When reviewing a legalsufficiency claim, we view the evidence in the light most favorable to the People and evaluatewhether there is any valid line of reasoning and permissible inferences which could lead arational person to the conclusion reached by the jury on the basis of the evidence at trial and as amatter of law satisfy the proof and burden requirements for every element of the crime charged"(People v Haggray, 164 AD3d1522, 1524 [2018] [internal quotation marks and citations omitted], lv denied 32NY3d 1111 [2018]).[FN2]"In conducting a weight of the evidence review, we view the evidence in a neutral light anddetermine first whether a different verdict would have been unreasonable and, if not, weigh therelative probative force of conflicting testimony and the relative strength of conflicting inferencesthat may be drawn from the testimony to determine if the verdict is supported by the weight ofthe evidence" (People v McCoy, 169AD3d 1260, 1261-1262 [2019] [internal quotation marks and citations omitted], lvdenied 33 NY3d 1033 [2019]).
As relevant here, a person is guilty of robbery in the first degree "when he [or she] forciblysteals property and when, in the course of the commission of the crime . . . , he [orshe] or another participant in the crime . . . [c]auses serious physical injury to anyperson who is not a participant in the crime" (Penal Law § 160.15 [1]). A person isguilty of burglary in the first degree when he or she knowingly enters a dwelling with the intentto commit a crime therein and, while in the dwelling, causes physical injury to any person who isnot a participant in the crime (see Penal Law § 140.30 [2]). As chargedherein, a person is guilty of grand larceny in the fourth degree when he or she steals propertyhaving a value of more than $1,000, or steals a credit or debit card or steals a motor vehiclehaving a value exceeding $100 (see Penal Law § 155.30 [1], [4], [8]). Aperson is guilty of criminal possession of stolen property in the third degree when he or sheknowingly possesses stolen property having a value exceeding $3,000 with the intent to benefitany person other than the owner thereof (see Penal Law § 165.50). Finally, aperson is guilty of unauthorized use of a vehicle when, knowing that he or she does not have theconsent of the owner, he or she "exercises control over . . . or otherwise uses avehicle with the intent to use the same in the course of or the commission of a . . .felony" (Penal Law § 165.08).
Turning to the events leading up the incident, Crystal Quayle testified that, in July 2016, shewas living at a motel in the Village of Ilion, Herkimer County when defendant, who also lived atthe motel, asked her to accompany him to the City of Glens Falls, Warren County the nextday—July 6, 2016—to have sex with someone while defendant robbed him; shedeclined. The next day, she had a conversation with Chapman, who also tried to convince her toaccompany him and defendant to the victim's residence to assist in the planned robbery. Quaylealso declined Chapman's request; after she gave Chapman $5 to purchase gas for the trip to GlensFalls, she observed Chapman walking to defendant's room at the motel. Quayle further testifiedthat, based on her conversations with defendant and Chapman, neither of them intended to havesex with the victim. Another resident of the motel, Vanessa Hempstead, testified that, on theevening of July 6, 2016, defendant asked her for gas money to drive to Glens Falls. After shegave defendant $7, she saw him driving a van owned by his girlfriend, Janet Johnson, withChapman in the passenger seat. The manager of the motel testified that defendant stated that heplanned to drive to a place in Glens Falls to rob it and that he was looking for a woman toparticipate by engaging in sexual activity with the victim during the robbery. On July 6, 2016, theday of the incident, the motel manager observed Chapman leaving the motel with a gun thatChapman waved at him before Chapman got into a van being driven by defendant.
The victim's daughter testified that the victim lived in an apartment located in Glens Fallsand that the victim identified as a gay man. A series of electronic messages exchanged betweendefendant and the victim revealed that the victim had posted an ad on Craigslist seeking a sexualencounter with another man or men. On July 5, 2016, defendant responded to the ad by askingthe victim if he was available to have a sexual encounter with defendant and defendant's friendon July 6, 2016. The victim responded affirmatively and provided defendant with his address. OnJuly 6, 2016, defendant and the victim exchanged additional messages confirming a meeting laterthat day at the victim's residence.
Chapman testified that, on July 6, 2016, defendant asked him for assistance in robbing thevictim and offered Chapman 40% of the proceeds. Chapman believed that his role would be toplace stolen property in the van or to serve as a lookout and that there was never any discussionof potential sexual conduct with the victim. Chapman also stated that, in response to defendant'srequest, he provided defendant with a BB gun to use during the robbery. Chapman testified thathe accompanied defendant to the victim's residence in Johnson's van and that, after he anddefendant entered the victim's home, the victim began asking Chapman about his sexualpreferences. According to Chapman, defendant then called the victim and Chapman into thebedroom where defendant removed his clothes, except for his underwear, and the victimcompletely undressed. Chapman stated that, as the victim began to get into the bed, defendantjumped on him, pulled out the gun, put it to the victim's head and asked the victim for his wallet,credit cards and personal identification numbers for the cards. Chapman testified that defendantthen told him to bind the victim; Chapman bound the victim's ankles with two socks anddefendant used two socks to tie the victim's arms.
Chapman further testified that, after the victim provided the personal identification numbers,defendant went to a nearby Family Dollar store and made a purchase to confirm that he could usethe cards. When defendant returned, Chapman and defendant loaded items from the victim'sresidence into the van and the victim's Cadillac. Chapman further testified that after stolen itemswere loaded into the van and the Cadillac, he restrained the victim while defendant used a cordfrom a television to choke the victim. When defendant was unable to kill the victim with thecord, he used his hands to strangle the victim to death. Chapman drove the Cadillac anddefendant drove the van as they returned to the motel, making stops along the way at an ATM towithdraw cash, at an automobile store to repair a broken headlight and to purchase gas. Chapmanadmitted that any prior inconsistent statements that he had given to the police and had madeduring his plea allocution were lies.
Bank records confirmed that purchases were made with the victim's credit cards on July 6,2016 at the Family Dollar store located near the victim's residence, at an automobile store and ata gas station, where a video recording depicted defendant making purchases. Bank recordsfurther confirmed that the victim's card was used to withdraw cash from two different ATMs andto make purchases at several other stores, and that it was also used in an unsuccessful attempt tomake a purchase at a Walmart store where a video recording depicted defendant attempting tocomplete the transaction.
Quayle testified that, during the evening of July 6, 2016, she observed a Cadillac in theparking lot of the motel and that the next day Chapman asked her if she knew of someone whocould trade a gold watch for cocaine. Hempstead similarly testified that, on the evening of July 6,2016, she observed Chapman pulling into the parking lot of the motel driving a Cadillac and thathe later asked her if she knew where "to get rid of the Cadillac [Chapman] was driving for$5,000." Hempstead and several other witnesses also testified that they saw Chapman anddefendant retrieving some items from the Cadillac and taking them into defendant's room at themotel.
On July 7, 2018, the victim's daughter discovered the victim's body in his bedroom andcalled 911. The victim's missing phone was tracked to the motel. On July 8, 2016, Chapman wastaken into custody and, after a search warrant was obtained, the police recovered numerous itemsof the victim's personal property from Chapman's and defendant's motel rooms. The police alsorecovered items of the victim's personal property from the motel room of Johnson, who testifiedthat they had been given to her by defendant.
Forensic pathologist Michael Sikirica testified that he performed an autopsy on the victimand concluded that the victim's death was a homicide caused by strangulation from theapplication of force by the hands of another person. Sikirica also opined that the lack of struggleby the victim—who weighed over 200 pounds—indicated that at least two peopleparticipated in killing the victim, with one restraining him as the other strangled him.
During a recorded interview made after he was arrested, defendant gave varying accounts ofthe incident. Initially, defendant stated that he knew the victim, acknowledged that he went to thevictim's residence with the intent to rob the victim, but remained in the car waiting for Chapman,and he did not observe the victim's death. He then changed his story by admitting that he was inthe bedroom for a few minutes and observed the victim tied up with a sock in his mouth.Defendant then again changed his version of the events by stating that he was stealing jewelryfrom the victim's bedroom while the victim was tied up. Finally, defendant acknowledged that hewitnessed the victim's death when he went into the bedroom and saw Chapman strangle thevictim. Defendant admitted that his purpose in going to the victim's residence was to rob thevictim, that he used the victim's credit cards and that he had been in possession of the stolenitems from the victim's residence.
The People also submitted a letter that defendant wrote to his defense attorney and sent toJohnson, which corroborated the final version of events that defendant related during hispostarrest interview. In the letter, defendant stated that, after Chapman told him that Chapmanneeded to make some money quickly, he offered to drive Chapman to the victim's residencewhere the victim would pay Chapman for sex. Upon arrival, Chapman and the victim went intothe victim's bedroom. After approximately 20 minutes, Chapman exited the bedroom anddefendant looked into the room where he observed the naked victim tied to the bed with a sock inhis mouth. When defendant attempted to untie the victim, Chapman pointed the gun at defendantand told defendant that "something bad" would happen to Johnson's mother if defendant failed tofollow Chapman's directions. Chapman and defendant then loaded the stolen items into thevehicles and Chapman directed defendant to wait in the van. After a long wait, defendantreturned to the victim's bedroom where he saw Chapman sitting on top of the victim and pushinga pillow into the victim's face. Defendant further wrote in the letter that after Chapman stated "it'sdone," they left the victim's residence.
When viewed in a light most favorable to the People, the foregoing evidence provided a validline of reasoning and permissible inferences from which a rational jury could conclude thatdefendant and Chapman planned to rob the victim, used deception to enter his residence for thepurpose of committing the robbery, forcibly restrained the victim before killing him and used hisautomobile to complete their commission of the robbery. Thus, the evidence was legallysufficient to support the convictions for robbery in the first degree, burglary in the first degree,criminal possession of stolen property in the third degree and unauthorized use of a vehicle in thefirst degree. As to the weight of the evidence, we conclude that a different verdict would havebeen unreasonable, as to these convictions, as well as the four convictions of grand larceny in thefourth degree, and reject this claim outright (see People v Cloonan, 166 AD3d 1063, 1065 [2018]; People v Wheeler, 159 AD3d1138, 1140 [2018], lv denied 31 NY3d 1123 [2018]).[FN3]
We are unconvinced by defendant's argument that County Court erred in refusing to suppressstatements that he made to police during a recorded interrogation. Defendant concedes that hereceived Miranda warnings, but contends that any subsequent waiver of those rights wasconditioned on his understanding that the interview was not being recorded and, therefore, thefact that the police officers lied to him when they told him that the interview was not beingrecorded rendered his statements involuntary.[FN4] "The police are permitted to lie or use somedeceptive methods in their questioning as long as the deception was not so fundamentally unfairas to deny due process . . . [and] was not so extensive as to induce a false confessionor overcome [a] defendant's will" (People v Berumen, 46 AD3d 1019, 1020-1021 [2007] [internalquotation marks, brackets and citations omitted], lv denied 10 NY3d 808 [2008]). Thepolice did not coerce or threaten defendant, who testified that he preferred that his statement notbe recorded so that he could be more at ease. Notably, defendant further testified that hesuspected the interview was being recorded. Under these circumstances, County Court properlydenied defendant's motion to suppress the statements that he made during the interview (see People v Weaver, 167 AD3d1238, 1240-1244 [2018], lv denied 33 NY3d 955 [2019]).
Defendant also contends that County Court erred by admitting a letter that defendant wrote tohis counsel on the basis that it was protected by the attorney-client privilege. Defendant authoredthe handwritten letter while he was in jail and sent it to Johnson with instructions that sheforward it to his counsel and retain a copy. Defendant contends that he sent the letter via Johnsonrather than directly to his counsel because he feared that jail officers were tampering with hismail.[FN5] "Theattorney-client privilege, which is codified in CPLR 4503 (a), enables one seeking legal advice tocommunicate with counsel for this purpose secure in the knowledge that the contents of theexchange will not later be revealed against the client's wishes. The privilege belongs to the clientand attaches if information is disclosed in confidence to the attorney for the purpose of obtaininglegal advice or services" (People v Osorio, 75 NY2d 80, 84 [1989] [citation omitted]).Although communications made between a defendant and his or her counsel in the knownpresence of a third party are not privileged, communications made to counsel through oneserving as an agent of either the attorney or the client to facilitate communication will beprivileged if the client had a reasonable expectation of confidentiality under the circumstances(see id.).
In these circumstances, we conclude that Johnson was acting as defendant's agent. Thus,whether the letter was protected by the attorney-client privilege turns on whether defendant had areasonable expectation of confidentiality when he sent it to Johnson. In that regard, there wascontradictory evidence regarding whether defendant authorized Johnson to share a copy of theletter with her mother, which County Court resolved by determining that defendant hadauthorized disclosure to Johnson's mother.[FN6] The determination that defendant specificallyauthorized disclosure of the letter to a third party, i.e., Johnson's mother, established thatdefendant had no reasonable expectation of confidentiality and, therefore, defeated theattorney-client privilege. Thus, County Court did not err in admitting the letter.
Defendant argues that County Court erred in denying his motion to suppress the evidencethat was seized from his motel room because the police had searched his room before theyobtained a search warrant. State Police investigator Susannah Rose testified that she went to themotel on July 8, 2016 at approximately 7:00 p.m. with four other police officers to investigate theincident, and she arrested Chapman. It is undisputed that police officers continuously observedthe entrance to defendant's room from 8:55 p.m. on July 8, 2016 until 9:00 a.m. on July 9, 2016and nobody entered his room during this time. Defendant conceded that the only time duringwhich the police officers could have entered the room prior to obtaining the search warrant at7:51 a.m. on July 10, 2016 was from 7:45 p.m. through 8:55 p.m. on July 8, 2016, and hecontends that, based on the testimony of the motel manager, police entered the room during thattime. County Court conducted a Mapp hearing and heard testimony from several policeofficers who were at the scene that the police did not enter defendant's room during the disputedtime period. We must accord great deference to County Court's factual determination and,therefore, discern no basis upon which to disturb its denial of defendant's motion to suppress theevidence that was seized from his motel room (see People v Cummings, 157 AD3d 982, 984-985 [2018], lvdenied 31 NY3d 982 [2018]; Peoplev Hayden, 155 AD3d 1309, 1310 [2017]).
We also reject defendant's argument that the grand jury proceeding was defective. "Inasmuchas the verdict was not against the weight of the evidence, it was necessarily founded upon legallysufficient evidence, and, as a result, defendant's challenges to the grand jury proceeding areprecluded to the extent they involve the sufficiency of the evidence presented or the instructionsgiven to the grand jury" (People vSecor, 162 AD3d 1411, 1413 [2018] [internal quotation marks and citations omitted],lv denied 32 NY3d 941 [2018]; accord People v Robinson, 156 AD3d 1123, 1128 n 8 [2017], lvdenied 30 NY3d 1119 [2018]). Our review of the grand jury minutes shows that a quorumwas present and does not reveal any flaw in the proceeding that would " 'warrant theexceptional remedy of reversal' " (People v Secor, 162 AD3d at 1413, quotingPeople v Robinson, 156 AD3d at 1128 n 8).
We find no error in County Court's sentencing of defendant as a persistent felony offender.Defendant concedes that his criminal history satisfied the definition of a persistent felonyoffender pursuant to Penal Law § 70.10. Moreover, nothing in the record suggeststhat County Court abused its discretion by determining that defendant should be sentenced as apersistent felony offender in light of his extensive criminal history and the violent nature of thecrimes for which he was convicted (seePeople v Swartz, 160 AD3d 1296, 1296 [2018]).
Finally, defendant contends that County Court was not authorized to make the sentence forhis conviction of unauthorized use of a vehicle in the first degree run consecutively to thesentences imposed on the other convictions. "Penal Law § 70.25 (2) mandates thatconcurrent sentences be imposed for two or more offenses committed through a single act oromission, or through an act or omission which in itself constituted one of the offenses and alsowas a material element of the other. . . . [T]o determine whether consecutivesentences are permitted, a court must first look to the statutory definitions of the crimes at issueto discern whether the actus reus elements overlap. Even where the crimes have an actus reuselement in common, the People may yet establish the legality of consecutive sentencing byshowing that the acts or omissions committed by [the] defendant were separate and distinct acts.Conversely, where the actus reus is a single inseparable act that violates more than one statute, asingle punishment must be imposed" (People v Rodriguez, 25 NY3d 238, 244 [2015] [internal quotationmarks, brackets and citations omitted]).
County Court charged the jury that a person is guilty of unauthorized use of a vehicle in thefirst degree when, "knowing that he or she does not have the consent of the owner[,] that persontakes, operates, exercises control over, rides in or otherwise uses a vehicle with the intent to usethe vehicle in the course or commission of [r]obbery in the [f]irst [d]egree[,] . . . orin the immediate flight therefrom" (see Penal Law § 165.08). The Peopleconcede, and we agree, that the sentence for unauthorized use of a vehicle in the first degree maynot run consecutively to the sentence for robbery in the first degree, which is an element ofunauthorized use of a vehicle in the first degree in this case.[FN7] We further conclude that the sentence forunauthorized use of a vehicle in the first degree may not run consecutively to the sentencesimposed for grand larceny in the fourth degree because the actus reus of grandlarceny—stealing property—is a material element of robbery in the first degree,which, in this case, is a material element of unauthorized use of a vehicle in the first degree.Further, inasmuch as the crime of robbery in the first degree was not complete until defendantstole the victim's property, there was no separate act that would permit the imposition of aconsecutive sentence for these two crimes (cf. People v Brahney, 29 NY3d 10, 14-16 [2017]; People vRodriguez, 25 NY3d at 244-245).
We conclude, however, that the sentence imposed for defendant's conviction of unauthorizeduse of a vehicle in the first degree may run consecutively to the sentences imposed for hisconvictions of burglary in the first degree and criminal possession of stolen property in the thirddegree. A person is guilty of burglary in the first degree when he or she knowingly enters adwelling with the intent to commit a crime therein and, while in the dwelling, causes physicalinjury to any person who is not a participant in the crime (see Penal Law§ 140.30 [2]). Burglary may be committed without stealing property and, in thiscase, was complete when the victim was killed. Accordingly, although the victim's death wasalso an element of robbery in the first degree, taking and using the automobile was a separate anddistinct act that was performed subsequent to completion of the burglary (see e.g. People vBrahney, 29 NY3d at 14-16; People v Rodriguez, 25 NY3d at 244-245). With respectto criminal possession of stolen property in the third degree, we have previously held that thestatutory elements of the crimes of larceny and possession are distinct and the acts of stealing andpossessing property are separate acts (see People v Garcia, 129 AD3d 1383, 1384 [2015]). Defendant'sremaining arguments have been considered and found to lack merit.
Egan Jr., J.P., Lynch, Devine and Aarons, JJ., concur. Ordered that the judgment is modified,on the law, by (1) reversing defendant's conviction of murder in the second degree under count11 of the indictment and (2) vacating that part of the sentence imposed for defendant's convictionof unauthorized use of a vehicle in the first degree as ordered said sentence to run consecutivelyto all other sentences; count 11 dismissed and the sentence imposed thereon vacated, with leaveto the People to re-present any appropriate charge to a new grand jury, and the sentence forunauthorized use of a vehicle in the first degree shall run concurrently to the sentences imposedfor robbery in the first degree and grand larceny in the fourth degree, but consecutively to thesentences imposed for burglary in the first degree and criminal possession of stolen property inthe third degree; and, as so modified, affirmed.
Footnote 1:Chapman pleaded guilty tomurder in the second degree in full satisfaction of all charges against him arising from theincident.
Footnote 2:Defendant's legal sufficiencychallenge to his convictions for grand larceny in the fourth degree was not preserved for ourreview because defense counsel did not move for dismissal of these four counts (see People v Vega, 170 AD3d1266, 1267 [2019]). Nevertheless, when conducting our weight of the evidence review, wemust determine whether each element of this crime was proven beyond a reasonable doubt(see id.; People v Junior,119 AD3d 1228, 1229 [2014], lv denied 24 NY3d 1044 [2014]).
Footnote 3:As previously noted, the murderconviction has been reversed and the legal sufficiency challenge as to the grand larcenyconvictions was not preserved.
Footnote 4:Defendant provided no legalauthority for the novel argument that a defendant may condition the waiver of his or herMiranda rights.
Footnote 5:We note that, if defendant's fearswere true, jail officers could have read or tampered with defendant's outgoing mail whether itwas addressed to his counsel or to Johnson; thus, sending the letter to Johnson would notnecessarily protect against defendant's fears. Nevertheless, we have assumed for purposes of ouranalysis that defendant expected that sending the letter to Johnson would protect it from beingintercepted or copied by jail personnel.
Footnote 6:In a pretrial hearing consideringthe admissibility of the letter, a recording of a phone call that defendant made to Johnson fromjail was played. As summarized by County Court, during the call, defendant expressed his angerat Johnson for having shared a copy of the letter with individuals other than her mother. Based onthis recorded conversation, County Court concluded that defendant had authorized Johnson todisclose the contents of the letter to her mother. At trial, Johnson testified that defendantinstructed her that she was not to share a copy of the letter and, over defendant's objection,County Court adhered to its original determination. The phone call is not part of the record onappeal, thus, we must defer to County Court's resolution of this factual issue based on its abilityto listen to the call and consider the credibility of Johnson's trial testimony.
Footnote 7:Even if we had not reverseddefendant's conviction for murder in the second degree, his sentence for unauthorized use of avehicle in the first degree could not have properly run consecutively to his sentence for murder inthe second degree.