| People v Henry |
| 2009 NY Slip Op 05650 [64 AD3d 804] |
| July 2, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Phillip MorrisHenry, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered September 26, 2007, upon a verdict convicting defendant of five counts of the crime ofburglary in the second degree.
Defendant was charged by indictment with five separate burglaries alleged to have beencommitted within the City of Albany during a three-week period in October 2006. After a trial,defendant was convicted as charged and was subsequently sentenced to a total of 30 years inprison, with five years of postrelease supervision.[FN1]County Court also directed that defendant pay $5,169 in restitution. Defendant now appeals and,as we find that his claims have either not been preserved or are [*2]without merit, we affirm.
Initially, defendant claims that the evidence supporting his conviction for burglary in thesecond degree in connection with a residence located at 1 Lawnridge Avenue in the City ofAlbany was legally insufficient and against the weight of the evidence. Specifically, he arguesthat no evidence was presented that the residence qualified as a dwelling because, on the date ofthe burglary, it was unoccupied (see Penal Law § 140.25 [2]; § 140.00 [3]).We disagree. "A dwelling does not lose its character as a dwelling based on the temporaryabsence of its occupant" (People v Barney, 294 AD2d 811, 812 [2002], affd 99NY2d 367 [2003] [citation omitted]) and, "[a]lthough the home may have been unoccupied at theprecise time of the burglary, it was still a dwelling within the parameters of the Penal Law" (People v Thomas, 33 AD3d 1056,1057 [2006], lv denied 8 NY3d 850 [2007]; see People v Montgomery, 1 AD3d 984 [2003], lv denied1 NY3d 631 [2004]). Here, the owner of the residence testified that, two months prior to theburglary, he and his family had moved from the residence and listed it with a real estate brokerfor sale. While it was, in fact, unoccupied on the date of the burglary, it still contained many ofthe family's personal belongings, including jewelry, clothing and a number of appliances. Underall of the circumstances presented, it retained its essential characteristic as a single-family home,located in a residential area and, while temporarily unoccupied, it remained "a building which isusually occupied by a person lodging therein at night" (Penal Law § 140.00 [3]). As such,the evidence was legally sufficient to support the conclusion that the residence was, in fact, adwelling on the date of the burglary and, further, that the conviction on this charge was notagainst the weight of the credible evidence.
Next, defendant finds fault with his counsel and claims that he did not provide him withmeaningful representation. Initially, defendant points to counsel's failure to object to theadmission into evidence of a book found at the scene of one of the burglaries entitled "FromPrison to Praise." The relevance of this evidence was established by the testimony given by awitness who claimed to have seen defendant reading a book with this title prior to the burglary(see generally People v Scarola, 71 NY2d 769, 777 [1988]). In addition, County Courtserved to minimize any prejudicial impact that might result from the title of the book and itssubject matter with limiting instructions it gave to the jury as to the proper use of such evidencein its deliberations.
Defendant also takes issue with his counsel's cross-examination of an eyewitness to one ofthe burglaries, and the fact that it resulted in an identification of defendant by this witness as theperpetrator. Specifically, counsel asked the witness—who had testified to seeing anindividual in the vicinity of a residence at the time it had been burglarized—whether thepolice had asked the witness to make an identification. Rather than respond directly to thequestion, the witness volunteered that he believed that the person he had seen was defendant.Given that counsel was pursuing a legitimate and relevant line of inquiry by establishing that thewitness had not been asked by the police to make an identification, his cross-examinationappears to have had a valid strategic objective and a responsive answer from the witness wouldhave aided the defense (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Allah, 57 AD3d 1115,1118 [2008]). On balance, viewing counsel's representation of defendant as an integrated whole,we cannot conclude that defendant was deprived of meaningful representation (see People vBaldi, 54 NY2d 137, 147 [1981]; People v Hamms, 55 AD3d 1142, 1145 [2008], lv denied11 NY3d 925 [2009]; People vRamos, 48 AD3d 984, 987 [2008], lv denied 10 NY3d 938 [2008]).[*3]
Defendant's claims of prosecutorial misconduct, as wellas his contention that County Court failed to properly poll the jury after it had delivered theverdict, were not raised before the court and, as such, have not been properly preserved for ourreview (see People v Alfaro, 66 NY2d 985, 987 [1985]; People v Watkins, 49 AD3d 908,909 [2008], lv denied 10 NY3d 965 [2008]; People v Kossman, 46 AD3d 1104, 1107 [2007]; People v Grady, 40 AD3d 1368,1374 [2007], lv denied 9 NY3d 923 [2007]; People v Albanese, 38 AD3d 1015, 1018 [2007], lv denied8 NY3d 981 [2007]; People v Blair,32 AD3d 613, 614 [2006]). Similarly, defendant not only failed to request that County Courthold a hearing to establish the amount of restitution (see Penal Law § 60.27), butnow, for the first time, argues that the court erred in not taking into account his ability to paybefore imposing restitution as part of his sentence (see Penal Law § 60.27 [2]; People v Tzitzikalakis, 8 NY3d217, 221 [2007]; People v Horne, 97 NY2d 404, 410 [2002]).
Initially, we note that County Court, in determining the amount to be paid, properly reliedupon the presentence report that established the amount of each victim's loss. Further, Penal Law§ 60.27 does not, by its terms, require that a defendant's ability to pay be taken intoaccount when the sentence to be imposed includes, as a significant component, a period ofincarceration. Such a requirement would, in effect, remove restitution as a viable sentencingoption in many instances where serious harm has been inflicted upon the victim and a period ofincarceration will be imposed as part of a defendant's sentence. For that reason, a court may, butis not necessarily required to, take into account a defendant's ability to pay restitution whenimposing a nonprobationary sentence that includes as a significant component a period ofincarceration.[FN2]And, we note that CPL 420.10 (5) provides that a defendant may, at anytime, request to beresentenced if it is subsequently determined "that the defendant is unable to pay" the restitutionas ordered. Here, defendant's sentence included a period of incarceration and it did not requiredefendant to pay restitution as a condition of probation—subjecting him to possibleincarceration—in the event of his failure to pay. As a result, even if defendant preservedthe issue before County Court, the court was not required to consider his ability to pay at thetime it imposed defendant's sentence in determining if a legal obligation to make restitution didin fact exist (see Penal Law § 60.27 [1]; People v Holmes, 300 AD2d1072, 1073 [2002]; People v Emmi, 254 AD2d 840, 840 [1998], lv denied 92NY2d 949 [1998]; see also People vJackson, 23 AD3d 1057 [2005], lv denied 6 NY3d 814 [2006]).[FN3]
Finally, in his pro se supplemental brief, defendant claims that the indictment isjurisdictionally defective (see CPL 200.50 [7], [8]). On the contrary, the indictmentprovided a plain and concise factual statement for each count asserting facts that supported everyelement of [*4]the offense alleged (see CPL 200.50 [7]).To the extent not specifically addressed herein, defendant's remaining claims have beenreviewed and found to be lacking in merit.
Rose, J.P., Kane, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: The specific sentences imposedwere as follows: on counts one and two, five years in prison on each count to run concurrently;on count three, 10 years in prison to run consecutively with the terms imposed on counts one andtwo; on count four, 7½ years in prison to run consecutively with the terms imposed oncount three; on count five, 7½ years in prison to run consecutively with the terms imposedon counts three and four.
Footnote 2: Of course, if the sentence doesnot include incarceration, or if it includes a period of probation with a condition of which beingthat defendant must make restitution, then a defendant's ability to pay must always be consideredwhen imposing such a sentence (see Penal Law § 65.10 [2] [g]).
Footnote 3: We recognize that this is adeparture from current case law from this Department (see People v Coston, 55 AD3d 943, 947 [2008], lv denied11 NY3d 924 [2009]; People vDurant, 41 AD3d 976 [2007]) and, as such, those cases should no longer be followed.