| People v Caston |
| 2009 NY Slip Op 01730 [60 AD3d 1147] |
| March 12, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ArthurCaston, Appellant. |
—[*1] Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered July 24, 2007, upon a verdict convicting defendant of the crimes of burglary in thesecond degree and criminal possession of stolen property in the fifth degree.
Lazaro Alonso arrived home one evening with his family and discovered defendant dressedin black clothing and wearing black gloves, crouched in a fetal position behind a tree, and withinan arm's reach of a safe that was later determined to have been stolen from a nearby apartment.When Alonso questioned defendant about his presence on the property, defendant responded thathe was "just listening to music." Alonso's wife called 911 and Alonso detained defendant untilthe police arrived. In response to Alonso's further questions concerning the safe, defendantdenied that he had anything to do with it, but indicated that several other individuals were in anapartment building on the property. At no point did Alonso observe or hear other individualsexiting the victim's apartment, nor were there other individuals found inside of the residence bythe responding officers. A later investigation revealed that an apartment on the property had beenbroken into by kicking in the front door. Inside the apartment, the door to the bedroom in whichthe occupant kept a safe—the same safe found next to defendant—had been forcedopen. On the porch of another house on the premises, the police also found a pocketbookcontaining defendant's cellular telephone.[*2]
Defendant was charged in a two-count indictment withthe crimes of burglary in the second degree and criminal possession of stolen property in thefourth degree. At the conclusion of a Sandoval hearing, County Court ruled that thePeople could inquire into 18 of defendant's 54 prior convictions should defendant choose totestify. Following a two-day jury trial, defendant was convicted of burglary in the second degreeand a lesser included charge of criminal possession of stolen property in the fifth degree. CountyCourt then sentenced defendant as a second felony offender to a prison sentence of seven yearson the burglary conviction, and a concurrent jail sentence of one year on the conviction ofpossession of stolen property. Defendant now appeals and we affirm.
Initially, we discern no error in County Court's Sandoval ruling. "The determinationas to which prior convictions . . . can be inquired about and the extent of suchinquiry rests primarily within the discretion of the trial court" (People v Adams, 39 AD3d 1081,1082 [2007], lv denied 9 NY3d 872 [2007] [citations omitted]; see People v Valderama, 25 AD3d819, 820 [2006], lv denied 6 NY3d 854 [2006]). Here, defendant's 25-year criminalhistory included over 50 convictions, the majority of which were for theft-related offenses.However, the People requested permission to cross-examine defendant about only 18convictions, all occurring within the previous 10 years. After carefully considering eachconviction, County Court determined that the probative value of those 18convictions—out of a total of 54—that related to defendant's veracity and credibilitywas not outweighed by the risk of unfair prejudice (see People v Hayes, 97 NY2d 203,208 [2002]; People v Clarke, 5AD3d 807, 809 [2004], lv denied 2 NY3d 797 [2004]). Thus, we find no abuse ofdiscretion in the Sandoval compromise fashioned by County Court.
Defendant's arguments concerning the legal sufficiency and weight of the evidenceessentially center on perceived deficiencies in the police investigation and the circumstantialnature of the People's proof. Because his counsel made only a general motion to dismiss at theclose of the People's case, defendant failed to preserve his claim regarding the legal sufficiencyof the evidence (see People v Gray, 86 NY2d 10, 20 [1995]). However, we necessarilyreview the evidence adduced as to each of the elements of the crimes in the context of our reviewof defendant's challenge regarding the weight of the evidence (see People v Danielson, 9 NY3d342, 349-350 [2007]; People vLoomis, 56 AD3d 1046, 1046-1047 [2008]). In doing so, we find no merit to eitherargument.
Where, "based on all the credible evidence a different finding would not have beenunreasonable" (People v Bleakley, 69 NY2d 490, 495 [1987]), "the court must [then]weigh conflicting testimony, review any rational inferences that may be drawn from the evidenceand evaluate the strength of such conclusions. Based on the weight of the credible evidence, thecourt then decides whether the jury was justified in finding the defendant guilty beyond areasonable doubt" (People v Danielson, 9 NY3d at 348 [citation omitted]; see People v Romero, 7 NY3d633, 636 [2006]; People v Bleakley, 69 NY2d at 495; People v Khuong Dinh Pham, 31AD3d 962, 964 [2006]).
In order to convict defendant of the crime of burglary in the second degree, the People wererequired to prove that defendant "knowingly enter[ed] or remain[ed] unlawfully in a buildingwith intent to commit a crime therein, and . . . [t]he building [was] a dwelling"(Penal Law § 140.25 [2]). A person enters or remains unlawfully in a dwelling "when he[or she] is not licensed or privileged to do so" (Penal Law § 140.00 [5]), such as whenconsent has not been obtained or is [*3]subsequently revokedfrom the owner or another who has the authority to issue such consent (see People vGraves, 76 NY2d 16, 20 [1990]; People v Glanda, 5 AD3d 945, 950 [2004], lv denied 3NY3d 640 [2004]). Intent to commit a crime "may be inferred from, inter alia, the circumstancesof the unlawful entry, defendant's unexplained presence on the premises and 'defendant's actionsand assertions when confronted by the police or the owner' " (People v Moore, 285AD2d 827, 828 [2001], lv denied 97 NY2d 685 [2001], quoting People vMitchell, 254 AD2d 830, 831 [1998], lv denied 92 NY2d 984 [1998]; see People v Hunter, 32 AD3d611, 612 [2006]; People vMarmulstein, 6 AD3d 879, 881 [2004], lv denied 3 NY3d 660 [2004]). In orderto convict defendant of criminal possession of stolen property in the fifth degree, the Peoplewere required to prove that defendant "knowingly possesse[d] stolen property, with intent tobenefit himself or a person other than an owner thereof" (Penal Law § 165.40).
Here, the Alonsos testified that they discovered defendant at approximately 8:25 p.m.dressed in black clothing and hiding just outside the apartment within arm's reach of a safe thathad not been there at 8:00 p.m. When questioned, defendant explained his presence on theproperty by saying that he was listening to music. However, defendant had no device for doingso. Similarly, although defendant indicated that other individuals were in the apartment, nonewas observed. Police Officer Travis Hartman's testimony further established that, when hearrived on the scene, the door to the victim's apartment had been kicked in and her bedroom doorhad been forced open. The People also presented the testimony of the victim that defendant hadpreviously resided with her, but that months before the incident she had him removed from herhome with instructions not to return. She also testified that she kept a safe in her bedroom andthat it was there when she was last at the apartment. Defendant did not testify or call anywitnesses on his own behalf at trial. Viewing the evidence in a neutral light and giving"appropriate deference to the jury's superior opportunity to assess the witnesses' credibility" (People v Gilliam, 36 AD3d 1151,1152-1153 [2007], lv denied 8 NY3d 946 [2007]; see People v Griffin, 26 AD3d 594, 596 [2006], lv denied7 NY3d 756 [2006]), even if a different finding would not have been unreasonable, we concludethat the verdict as to both charges was not contrary to the weight of the evidence (see Peoplev Bleakley, 69 NY2d at 495).
Inasmuch as defendant did not object to the People's comments during summation that henow asserts violated his right to a fair trial, his appellate challenge to such conduct is notpreserved for our review (see People v Valderama, 25 AD3d at 821; People vHughes, 280 AD2d 694, 696 [2001], lv denied 96 NY2d 801 [2001]). Defendant'sremaining contentions—including his claim that his 6th Amendment right of confrontationwas violated by the admission of certain testimony regarding identification of the cellulartelephone recovered at the scene and the severity of his sentence—have been consideredand are without merit (see People vPerez, 47 AD3d 409, 411 [2008], lv denied 10 NY3d 843 [2008]; People v Howell, 44 AD3d 685,686 [2007], lv denied 10 NY3d 766 [2008]; People v Sidbury, 24 AD3d 880, 881 [2005], lv denied 6NY3d 818 [2006]; People v Tirado,19 AD3d 712, 714 [2005], lv denied 5 NY3d 810 [2005]).
Cardona, P.J., Rose and Kane, JJ., concur. Ordered that the judgment is affirmed.