| People v Brown |
| 2009 NY Slip Op 03795 [62 AD3d 1089] |
| May 14, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MauriceBrown, Also Known as Cheeba, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the Supreme Court (McDonough, J.), renderedMarch 19, 2007 in Albany County, upon a verdict convicting defendant of the crimes of burglaryin the second degree (three counts) and petit larceny (three counts).
Defendant and a codefendant, Marty Jones, were charged in a multicount indictment forcrimes related to a series of burglaries in the City of Albany. Jones, who faced more charges thandefendant, cooperated with police. Defendant proceeded to a jury trial, where he was tried oneight charges, two from each of four alleged burglaries. Jones was called as a witness by theprosecution and supplied details regarding defendant's involvement in the crimes. The jury founddefendant guilty of the charges emanating from three of the burglaries, resulting in a convictionof three counts of burglary in the second degree and three counts of petit larceny. He wassentenced, as a second felony offender, to three consecutive 12-year prison terms for theburglary convictions, as well as concurrent one-year sentences for each petit larceny conviction,and five years of postrelease supervision. Defendant appeals.
Defendant argues that the jury's verdict was not supported by legally sufficient evidence andwas against the weight of the evidence. Applying the well-settled standards for review regardinglegal sufficiency and weight of the evidence (see People v Bleakley, 69 NY2d 490,495[*2][1987]; see also People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Hall, 57 AD3d 1229,1230 [2008]), we find defendant's argument unavailing. Jones's testimony provided sufficientevidence to establish the elements of the crimes of which defendant was convicted. However,since Jones was an accomplice, corroborative evidence was required (see CPL 60.22 [1];People v Caban, 5 NY3d 143,154-155 [2005]). The People's burden in such regard is "merely to offer some nonaccompliceevidence tending to connect defendant to the crime charged" (People v Besser, 96 NY2d136, 143-144 [2001] [internal quotation marks omitted]; see People v Gilbo, 52 AD3d 952, 953 [2008], lv denied11 NY3d 788 [2008]).
There was ample corroborative evidence regarding the burglary of 32 Fullerton Street onApril 6, 2006, and the two burglaries (first floor apartment and basement apartment) at 96 PhilipStreet on April 10, 2006. As to 32 Fullerton Street, neighbors saw a car that matched the makeand color of defendant's sister's car (which defendant frequently used) parked on the street infront of the burglarized house and a man fitting defendant's description entered the house. Later,the same man was seen sitting behind the wheel of the car and a man fitting Jones's descriptioncarried something out of the house, placed it in the car's back seat and the two men left in the car.Also, the victim testified that, among the items taken from her home was a large jug of coins,and a supermarket employee observed two men, one of whom she later identified as defendant,emptying a large jug full of change into a coin redemption machine at the supermarket shortlyafter the alleged burglary. As to 96 Philip Street, a postal worker testified that he delivered apackage to the location at the approximate time of the burglary and that a man whom he lateridentified as defendant was coming down the steps of the house and claimed to be working in thehouse. He also saw a man that resembled Jones in a car that fit the description of the carbelonging to defendant's sister. The manager of a pawn shop identified defendant on the shop'ssurveillance tape from the day of the alleged crimes, and he testified that defendant and Jonessold him property, which he later turned over to the police. That property was identified by thevictims from the 96 Philip Street apartments as belonging to them. Moreover, property stolenfrom this location was found in the trunk of defendant's sister's car and on defendant's person atthe time of his arrest. The evidence was legally sufficient, and, having weighed the conflictingtestimony and reviewed rational inferences from the evidence, while according deference to thejury's assessment of witness credibility, the verdict is not against the weight of the evidence (see generally People v Green, 49AD3d 1029, 1029-1030 [2008], lv denied 10 NY3d 863 [2008]).
Next, we address defendant's contentions that he was denied the effective assistance ofcounsel and that Supreme Court erred in denying his request for a different assigned counsel. "'So long as the evidence, the law, and the circumstances of [the] particular case, viewed intotality and as of the time of the representation, reveal that the attorney provided meaningfulrepresentation,' a defendant's constitutional right to the effective assistance of counsel will havebeen met" (People v Henry, 95 NY2d 563, 565 [2000], quoting People v Baldi,54 NY2d 137, 147 [1981]). Here, counsel made appropriate pretrial motions, numerous effectiveobjections at trial, thoroughly cross-examined the People's witnesses, delivered cogent openingand closing arguments, and obtained an acquittal on two of the charges. While defendant uses theluxury of hindsight to point to a few things that could have been done differently, these allegederrors—particularly when considered in the context of the lengthyproceedings—fail to establish that defendant did not receive meaningful representation(see People v Benevento, 91 NY2d 708, 712 [1998]; People v Gilliam, 300AD2d 701, 701 [2002], lv denied 99 NY2d 628 [2003]). With regard to defendant'srequest for new assigned counsel, Supreme Court adequately evaluated the reasons for therequest—which arose primarily from defendant's antagonistic approach and unsupportedaccusations—and the court did not abuse its discretion in denying the request since [*3]sufficient good cause for such substitution was not established(see People v Sides, 75 NY2d 822, 824 [1990]; People v Davenport, 58 AD3d892, 895 [2009]; People v Dunton,19 AD3d 808, 808-809 [2005], lv denied 5 NY3d 805 [2005]).
Two suppression issues are asserted by defendant. Neither has merit. Defendant failed toestablish that the police officer who prepared the application for a search warrant of defendant'sresidence "knowingly or recklessly submitted false information to the issuing Magistrate"(People v Cohen, 90 NY2d 632, 638 [1997]). Although the application relied in partupon information provided to police by Jones, that information was not necessarily unreliablesince it was based upon Jones's personal involvement with defendant and Jones's statement wasagainst his penal interest (see People v McCann, 85 NY2d 951, 953 [1995]; People vParker, 256 AD2d 362, 362 [1998], lv denied 93 NY2d 877 [1999]; People vMcCulloch, 226 AD2d 848, 849-850 [1996], lv denied 88 NY2d 1070 [1996]). Withregard to the photographic array shown to the pawn shop manager, we have reviewed the arrayand it was not, as urged by defendant, unduly suggestive (see People v Means, 35 AD3d 975, 975-976 [2006], lvdenied 8 NY3d 948 [2007]).
Defendant argues that Supreme Court's Sandoval ruling constituted reversible error.Defendant had numerous prior convictions (four felonies and six misdemeanors) over 20 years.The court ruled that it would permit inquiry about defendant's 1994 misdemeanor forgeryconviction (including the underlying facts) since the nature of that crime was particularlypertinent to credibility (see People v O'Garro, 258 AD2d 423, 424 [1999], lvdenied 93 NY2d 975 [1999]), and also that it would permit questions about the existence of(but not the underlying facts about) the three most recent felony convictions. TheSandoval determination "rests largely within the reviewable discretion of the trial court,to be exercised in light of the facts and circumstances of the particular case before it" (Peoplev Hayes, 97 NY2d 203, 207 [2002]). Supreme Court's ruling reflects a balance betweenpotential prejudice to defendant and the probative nature of his convictions, and we areunpersuaded that Supreme Court abused its discretion (see People v Ward, 27 AD3d 776, 777 [2006], lv denied 7NY3d 764 [2006]; People v Evans,17 AD3d 861, 862-863 [2005], lv denied 5 NY3d 828 [2005]; People vJackson, 302 AD2d 748, 750 [2003], lv denied 100 NY2d 539 [2003]).
In his separate pro se brief, defendant asserts that the People knowingly elicited falsetestimony and tampered with evidence. The record fails to reveal any merit to these assertions.
Finally, in light of defendant's extensive criminal history, we are unpersuaded that thesentence imposed constituted a clear abuse of discretion or that extraordinary circumstances existmeriting a reduction thereof (see People v Jenkins, 256 AD2d 735, 737 [1998], lvdenied 93 NY2d 854 [1999]; People v Hayden, 250 AD2d 937, 939 [1998], lvsdenied 92 NY2d 879, 982 [1998], cert denied 526 US 1028 [1999]). We note thatthe aggregate maximum term of the sentence has been reduced to 20 years as provided in PenalLaw § 70.30 (see generally People v Ramirez, 89 NY2d 444, 455 n 7 [1996]; People v Jackson, 25 AD3d 1012,1014 [2006], lv denied 6 NY3d 849 [2006]; People v Nusbaum, 222 AD2d 723,726 [1995], lv denied 87 NY2d 1023 [1996]).
Cardona, P.J., Peters, Kane and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.