| People v Carter |
| 2008 NY Slip Op 03341 [50 AD3d 1318] |
| April 17, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jay Carter,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Schenectady County (Hoye, J.),rendered June 30, 2005, upon a verdict convicting defendant of the crime of burglary in thesecond degree.
Following a jury trial, defendant was convicted of burglary in the second degree andsentenced, as a second felony offender, to a prison term of 15 years, with five years of postreleasesupervision and restitution. The conviction stems from evidence that, on October 12, 2004, heentered the upstairs apartment occupied by the owner of a two-family home in the City ofSchenectady, Schenectady County without permission or any right to do so by using a laddertaken from a nearby house and prying open an upstairs porch window. Defendant, anacquaintance of the female tenant (hereinafter the tenant) who had recently moved into the firstfloor apartment, had visited the tenant numerous times and helped with repairs, and defendantwas aware that the owner was usually out of town on business during the week. The tenant heardnoises upstairs around 2:00 p.m. and—aware that the owner was out of town but unawarethat it was defendant who was upstairs—alerted police. After repeatedly announcing theirpresence and unsuccessfully attempting to gain entry (all doors to the upstairs apartment werelocked), police entered and found defendant hiding under a bed with the owner's keys, which hadbeen stored in a cabinet. Defendant was immediately arrested and, upon her return several dayslater, the owner discovered that numerous items were missing, including cash, power tools,electronic equipment, [*2]and CD and DVD collections, and thata can of food had been cooked on her stove. Defendant testified, offering innocent explanationsfor his nighttime entry and presence (that the tenant had given him permission) and intent (torepair the malfunctioning furnace), and attempted to implicate the tenant and her allegedlydrug-related acquaintances in the thefts and the owner in insurance fraud. Defendant nowappeals, raising a litany of issues.
Initially, we find that on the second day of the trial, defendant knowingly, voluntarily andintelligently waived his right to be present by requesting to be removed from the courtroom andreturned to jail for the trial's remainder (see People v Parker, 57 NY2d 136, 139-142[1982]), because he was unhappy with County Court's Molineux rulings. Defendant'swaiver occurred after he conferred with counsel, who advised against it, and after the courtattempted to change his mind and made clear that the trial would proceed (see id. at 141;People v Walsh, 222 AD2d 735, 736 [1995], lv denied 88 NY2d 855 [1996]).Notably, defendant appeared the next day and was persuaded to be present for the remainder ofthe trial.
Defendant further challenges the verdict as not supported by legally sufficient evidence. Weare unpersuaded. The primary issue at trial was defendant's intent[FN1] to commit the crime of larceny at the time of his unlawful nighttime entry, which was proven bythe manner of his entry (using a ladder, forcing open a porch window and removing an airconditioner) (see People v Jacobs,37 AD3d 868, 870 [2007], lv denied 9 NY3d 923 [2007]), the condition of theapartment and the evidence of numerous missing items (see People v Tricic, 34 AD3d 1319 [2006], lv denied 8NY3d 850 [2007]) and his conduct in hiding (see People v Moore, 285 AD2d 827, 828[2001], lv denied 97 NY2d 685 [2001]). Viewing the evidence in a light most favorableto the People and according them the benefit of every favorable inference, we find that it wassufficient (see People v Bleakley, 69 NY2d 490, 495 [1987]).
With regard to defendant's challenge to the weight of the evidence, we find that an acquittalon the burglary charge would indeed have been unreasonable (see id.; see also People v Danielson, 9 NY3d342, 348 [2007]; People vRomero, 7 NY3d 633, 643-644 [2006]). Even [*3]werewe to weigh the conflicting evidence, the People's witnesses overwhelmingly established thatdefendant's unlawful entry was with the intent to steal, and his implausible testimony to thecontrary is simply unworthy of belief.
Defendant also argues that the People's failure to provide a criminal background check for awitness who testified—pursuant to the Molineux ruling—that defendant hadstolen her car earlier in 2004, violated the People's Rosario obligation. However, CPL240.45 (1) (b) only requires disclosure of records of judgments of conviction of a witness if it is"known by the prosecutor to exist" (seePeople v Griffin, 48 AD3d 894, 895 [2008]; People v Ingraham, 274 AD2d 828,829 [2000]). County Court credited the People's representation that they did not request orpossess a background check for this witness and had no knowledge of the criminal convictions inissue. Further, the defense was able to impeach the witness with three known convictions, andany error in refusing to allow the witness to be recalled for further impeachment was harmless(see People v Pressley, 91 NY2d 825, 827 [1997]).
Likewise unpersuasive are defendant's claims that County Court erred in curtailing defensecounsel's cross-examination of, and right to call, witnesses regarding the tenant's alleged drugactivity in an effort to raise the specter of other perpetrators. We find no abuse of discretion inthe limitations placed on the defense, given the lack of a good-faith showing of such activity atthis location, that the sole issue at trial was defendant's intent in entering this dwelling, and thathe was permitted to explore this theory upon cross-examination of the tenant (see People v Richardson, 28 AD3d1002, 1004-1005 [2006], lv denied 7 NY3d 817 [2006]).
Next, we address County Court's Molineux and Sandoval rulings. After alengthy hearing and repeatedly revisiting and modifying its ruling throughout the trial, the courtpermitted the People to elicit evidence of only three prior bad acts and criminal convictions outof more than 25 proffered: (1) a 1990 burglary conviction in Florida for stealing a car (proved bya certificate of conviction), (2) a 1996 conviction for petit larceny for stealing from his mother(proved by a certificate of conviction after defendant's mother and sister were unable to recall theincident at trial), and (3) the 2004 incident in which defendant stole a car from a witness whotestified after spending an evening at a hotel with her. The foregoing were relevant andadmissible under Molineux to show defendant's larcenous intent in entering thisdwelling. As none of the missing items was recovered or found on defendant's person, his intentwas the central disputed issue that could not be easily inferred, given his relationship with thetenant and recent presence at the house to assist in repair work (see People v Alvino, 71NY2d 233, 242 [1987]; People vBourne, 46 AD3d 1101, 1103 [2007], lv denied 10 NY3d 762 [2008]; cf. People v Billups, 45 AD3d1176, 1177 [2007]; People vHunter, 32 AD3d 611, 612 [2006]). Indeed, defense counsel's opening statement impliedthat there was an innocent explanation for defendant's presence in the dwelling, putting his intentin issue (see People v Wright, 5AD3d 873, 876 [2004], lv denied 3 NY3d 651 [2004]), and defendant testified tothat end. Further, the record reflects that the court meticulously weighed the probative value ofthis evidence against its potential prejudice, excluding most of defendant's lengthy criminalhistory, and provided immediate and clear limiting instructions each time the evidence waselicited and in its final charge (see People v Alvino, 71 NY2d at 242).
We next consider County Court's Sandoval ruling, pursuant to which the People werepermitted to ask circumscribed questions on cross-examination of defendant for impeachmentpurposes regarding six criminal convictions and two uncharged acts of larceny in 2004. The priorcrimes and bad acts for which limited inquiry was allowed, including prior larcenous [*4]behavior, reflect defendant's willingness to place his self-interestsabove those of society, and we discern no abuse of discretion in the court's ruling that they had abearing on his credibility as a witness (see People v Hayes, 97 NY2d 203, 207 [2002];People v Sandoval, 34 NY2d 371, 376-377 [1974]; People v Valderama, 25 AD3d 819, 820 [2006], lv denied 6NY3d 854 [2006]). The court's ruling was a carefully crafted compromise in which most of thenumerous prior convictions and bad acts sought to be used were excluded, and those permittedwere redacted or limitations were placed on the elicitation of underlying facts.
Further, defendant challenges that aspect of County Court's Sandoval ruling allowingthe use of two 2004 uncharged larcenies for impeachment purposes, for which heinvoked his 5th Amendment right against self-incrimination. The Court of Appeals has long heldthat "a defendant-witness does not generally and automatically waive the privilege againstself-incrimination as to pending collateral criminal charges" (People v Betts, 70NY2d 289, 294-295 [1987] [emphasis added]; accord People v Bennett, 79 NY2d 464,468-469 [1992]). It is unclear, however, if this rule applies to preclude impeachment of adefendant with uncharged criminal conduct, i.e., where the defendant had never beencharged with the prior larcenies (but theoretically could still be—if the statute oflimitations has not yet run), although there is authority to support such an extension of theBetts rule (see Preiser, Practice Commentaries, McKinney's Cons Laws of NY,Book 11A, CPL 240.43, at 442-443). However, even assuming that the Betts rule appliesto uncharged criminal acts for which defendant could still be prosecuted, we would find thatthere is no reasonable possibility that the questions contributed to defendant's conviction and,thus, any error was harmless beyond a reasonable doubt[FN2] (see People v Crimmins, 36 NY2d 230, 237 [1975]; People v Perez, 160 AD2d637, 638 [1990], lv denied 76 NY2d 793 [1990]). Notably, the court's advance ruling didnot cause defendant to forgo his right to testify (cf. People v Bennett, 79 NY2d at 468;People v Betts, 70 NY2d at 290-291), and his invocation of his right againstself-incrimination was honored each time and questioning ceased; also, the court provided acautionary jury instruction (see CJI2d[NY] Witness Refuses To Answer—RefusalEffect on Witness Credibility) to which no objection was raised. As such, we find no reversibleerror.
We have considered defendant's remaining contentions, including those raised in his pro sebrief and the claims of ineffective assistance of counsel, and find that they lack merit. Finally,defendant's sentence, while the maximum permissible, was neither harsh nor excessive given hisconduct, his lengthy history of stealing and committing other crimes, and his disregard of the lawand the rights of others.
Cardona, P.J., Mercure, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: Defendant testified that hebelieved the upstairs apartment was unoccupied and that he had the tenant's permission to enter,thereby disputing that it was an occupied dwelling (see Penal Law § 140.00 [3])and that he had a right to be there (see Penal Law § 140.00 [5]). Although he raisedneither claim in his motion for a trial order of dismissal, County Court expressly decided thelatter issue so as to preserve it for review (see People v Edwards, 95 NY2d 486, 491 n 2[2000]). In any event, the proof amply established that defendant knew the owner lived in thefully furnished apartment, notwithstanding her trips out of town (see People v Barney, 99NY2d 367, 370-371 [2003]), and that he lacked permission to enter it (see People v Jackson, 38 AD3d1052, 1053-1054 [2007], lv denied 8 NY3d 986 [2007]).
Footnote 2: It is doubtful that any error ofconstitutional dimension occurred, given that defendant's constitutional rights to testify and toinvoke his right against self-incrimination were honored. Further, no denial of a fair trialoccurred.