| People v Saylor |
| 2019 NY Slip Op 05027 [173 AD3d 1489] |
| June 20, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Tonia M. Saylor, Appellant. |
James L. Riotto, Rochester, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Sophie J. Marmor of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered August 9, 2016, upon a verdict convicting defendant of the crimes of burglary in thesecond degree and harassment in the second degree.
Defendant was indicted on one count of burglary in the second degree and two counts ofharassment in the second degree based upon allegations that, on an evening in May 2015, she andher husband knowingly and unlawfully entered the residence of Heather Austin armed with abaseball bat and pepper spray and that, during the ensuing altercation, defendant struck Austinand her boyfriend with that baseball bat. Defendant's husband was similarly charged, by separateindictment, with one count of burglary in the second degree and two counts of harassment in thesecond degree. Defendant's indictment was later consolidated with her husband's indictment and,following a joint jury trial, defendant was convicted of burglary in the second degree and one ofthe two counts of harassment in the second degree.[FN1] She was sentenced to a prison term of3
Defendant asserts that her conviction for burglary in the second degree was not based uponlegally sufficient evidence and was also against the weight of the evidence. When considering achallenge to the legal sufficiency of the evidence, we must "view the evidence in the light mostfavorable to the People and evaluate whether 'there is any valid line of reasoning and permissibleinferences which could lead a rational person to the conclusion reached by the jury on the basisof the evidence at trial and as a matter of law satisfy the proof and burden requirements for everyelement of the crime charged' " (People v Robinson, 156 AD3d 1123, 1124 [2017], lvdenied 30 NY3d 1119 [2018], quoting People v Bleakley, 69 NY2d 490, 495 [1987];see People v Johnson, 38 AD3d1057, 1058 [2007]). In contrast, in a weight of the evidence review, we first determinewhether, based on all of the credible evidence, a different finding would have been unreasonable(see People v Bleakley, 69 NY2d at 495; People v Vega, 170 AD3d 1266, 1268 [2019]; People v Cole, 162 AD3d 1219,1223 [2018], lv denied 32 NY3d 1002 [2018]). If an acquittal would not have beenunreasonable, we must then, like the trier of fact, "weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony" to determine if the verdict is supported by the weight of the evidence (People vBleakley, 69 NY2d at 495 [internal quotation marks and citation omitted]; see People vVega, 170 AD3d at 1268; People v Cole, 162 AD3d at 1223).
As relevant here, a conviction for burglary in the second degree requires proof that thedefendant "knowingly enter[ed] or remain[ed] unlawfully" in a dwelling "with intent to commit acrime therein" (Penal Law § 140.25 [2]). "A person enters or remains unlawfully ina dwelling 'when he [or she] is not licensed or privileged to do so' " (People v Caston, 60 AD3d 1147,1149 [2009], quoting Penal Law § 140.00 [5]). Additionally, "a defendant's intent[to commit a crime] may be properly inferred from, among other things, the circumstances of theentry, his or her unexplained presence in the building and his or her actions and statements whileon the premises" (People v Stetin,167 AD3d 1245, 1248 [2018], lv denied 32 NY3d 1178 [2019]; see People vCastillo, 47 NY2d 270, 277-278 [1979]).
Initially, defendant's legal sufficiency challenge is preserved only to the extent that sheargues that the People failed to prove that she knowingly entered Austin's home unlawfully (see People v Harris, 162 AD3d1240, 1241 [2018], lv denied 32 NY3d 937 [2018]; People v Iovino, 149 AD3d 1350,1351 [2017], lv denied 30 NY3d 950 [2017]; People v Thiel, 134 AD3d 1237, 1238 [2015], lv denied 27NY3d 1156 [2016]). Nevertheless, as part of our weight of the evidence review, we will assesswhether each element of burglary in the second degree, as charged in the indictment, was provenbeyond a reasonable doubt (see People vDanielson, 9 NY3d 342, 349 [2007]; People v Wright, 139 AD3d 1094, 1098 [2016], lvs denied28 NY3d 939 [2016], 29 NY3d 1089 [2017]).
Austin and her boyfriend each testified that defendant and her husband, who lived next door,entered Austin's apartment without permission, that both defendant and her husband werewearing gloves when they entered and that defendant was carrying a baseball bat wrapped inplastic and sarcastically stated that she had "something" for the boyfriend. The evidence alsorevealed that, before the incident, defendant sent Austin a text message that stated, "I'm beatinghis ass when he comes back down."[FN2] Additionally, both Austin and her boyfriendtestified that they asked defendant and her husband to leave, but that defendant's husband insteadinitiated a physical altercation with Austin's boyfriend. The testimony, including that given bydefendant, further established that defendant and Austin had been close friends and that they hadexchanged keys to each other's apartments at one point. However, Austin testified that she haddistanced herself from defendant recently and had asked defendant to return the key to herapartment a month or two prior to the incident, which, according to Austin, defendant had done.Austin testified that, even when she had given defendant a key to her apartment, defendant didnot have an open invitation to enter whenever she wanted. In contrast, defendant testified that shehad a key to Austin's apartment and that it was common for her to let herself in. She stated thatshe had been concerned for Austin's well-being after not hearing from Austin all day, which wasunusual, and that she became more concerned upon learning that Austin was with the boyfriend.Defendant and her husband both testified that they knocked on Austin's door and, when there wasno answer, defendant used her key to enter. Defendant and her husband maintained that they hadgone to the apartment to check on Austin.
Viewed in the light most favorable to the People, we find that the evidence was legallysufficient to establish that defendant knowingly entered or remained unlawfully in Austin's home(see People v Stetin, 167 AD3d at 1248-1249). Although it would not have beenunreasonable for the jury to have acquitted defendant of burglary in the second degree, the juryclearly credited the People's proof that defendant knowingly entered or remained unlawfully inAustin's home and that she entered with an intent to commit a crime (see People vWebster, 290 AD2d 659, 660 [2002], lv denied 98 NY2d 641 [2002]). Deferring tothe jury's credibility determinations and considering the inferences that may be properly drawnfrom the circumstances of the entry, including that defendant was carrying a baseball batwrapped in plastic and wearing gloves, defendant's burglary conviction is not against the weightof the evidence (see People vJackson, 151 AD3d 1466, 1468 [2017], lv denied 30 NY3d 950 [2017]; People v Briggs, 129 AD3d 1201,1203-1204 [2015], lv denied 26 NY3d 1038 [2015]; People v Webster, 290 AD2dat 660).
Further, we reject defendant's contention that, with respect to the charge of harassment in thesecond degree, County Court should have instructed the jury on the defense ofjustification—namely, the use of physical force in defense of a person (see PenalLaw § 35.15 [1]).[FN3] "A justification charge must be given 'if there isany reasonable view of the evidence, when it is considered in the light most favorable to thedefendant, that would allow the jury to conclude that the defendant's actions werejustified' " (People vRamirez, 118 AD3d 1108, 1112 [2014], quoting People v Powell, 101 AD3d 1369, 1370-1371 [2012], lvdenied 21 NY3d 1019 [2013]). Here, considered in the light most favorable to defendant,there is no reasonable view of the evidence that would support the conclusion that defendant'sactions were justified, given that defendant and her husband were the initial aggressors(see Penal Law § 35.15 [1] [b]; People v Kerley, 154 AD3d 1074, 1075-1076 [2017], lvdenied 30 NY3d 1106 [2018]). Accordingly, County Court properly declined to give therequested justification charge (seePeople v Cotsifas, 100 AD3d 1015, 1015-1016 [2012], lv denied 21 NY3d 1014[2013]; People v Rodriguez, 306 AD2d 686, 688 [2003], lv denied 100 NY2d 624[2003]). Defendant's related assertion that a justification charge was warranted under a"choice-of-evils" defense (see Penal Law § 35.05 [2]) is unpreserved (see People v Wheatley, 55 AD3d947, 949 [2008], lv denied 11 NY3d 931 [2009]).
To the extent that we have not expressly addressed any of defendant's remaining contentions,they have been examined and found to be without merit.
Egan Jr., J.P., Lynch, Mulvey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Specifically, defendant wasconvicted of the charge accusing her of striking Austin's boyfriend with the baseball bat.Defendant's husband was convicted of one count of harassment in the second degree andacquitted of the remaining charges.
Footnote 2:Defendant did not—as hercodefendant did—object to the admission of the text messages on foundational groundsand, thus, that aspect of her evidentiary challenge is unpreserved (see People v Buckley,75 NY2d 843, 846 [1990]; People v Teeter, 47 NY2d 1002, 1003 [1979]). As to thealleged violation of the rule of completeness, County Court did not abuse its discretion inadmitting the exhibit, as there was no evidence that the People omitted any exculpatory materialor that any omitted material was necessary for explanatory purposes (see People v Cartagena, 170 AD3d451, 452 [2019], lv denied 33 NY3d 1029[2019]; People v Bermudez, 168AD3d 446, 447 [2019]). In any event, any error would be harmless (see People vCartagena, 170 AD3d at 452).
Footnote 3:Defendant did not request ajustification instruction in connection with the charge of burglary in the second degree and, thus,her contention that the jury should have been so instructed is unpreserved for our review (seePeople v Buckley, 75 NY2d at 846; People v Teeter, 47 NY2d at 1003). In any event,a justification defense is generally inapplicable to a burglary charge (see People v LaPetina, 34 AD3d836, 840 [2006], affd 9 NY3d 854 [2007]; People v Bess, 107 AD2d 844,845-846 [1985]).