| People v Barnes |
| 2009 NY Slip Op 05696 [64 AD3d 890] |
| July 9, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v GregoryBarnes, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Matthew L. Bloss, Law Intern), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered April 11, 2008, upon a verdict convicting defendant of the crimes ofburglary in the first degree (three counts), burglary in the second degree, menacing in the seconddegree (three counts), criminal mischief in the fourth degree and harassment in the seconddegree.
On March 5, 2007, the victim was in the bedroom of her apartment when, at approximately6:15 a.m., she heard someone behind her utter the word "Bitch." When she turned around, shesaw an intruder standing in her bedroom doorway wearing a mask, goggles and a blacksweatshirt with a hood pulled over his head. The intruder had a phone cord in his hands, whichhe snapped and said he was going to use to strangle and kill the victim. He approached thevictim, continued to threaten her, dropped the phone cord and then pulled a dog leash or "chokechain" from his pocket and snapped it in the victim's face. When the victim asked the intruderwhat he wanted, he answered, "I want you to be nice to me. I want you to be nice to people." Sherecognized the voice as that of defendant, her brother-in-law. A struggle ensued during which theintruder forced the victim onto the bed, punched her and poked her thigh with a screwdrivercausing a minor injury. The intruder then fled out of the apartment through the back door. EricaDurham, who lived above the victim's apartment, telephoned 911 when she heard sounds of astruggle coming from the victim's apartment and heard the victim [*2]scream defendant's name. After the intruder fled, Durham went tothe victim's apartment, gave her the portable telephone she had used to call 911, and the victim,in Durham's presence, told the 911 operator that she believed defendant had broken into herapartment and attacked her.
Defendant was ultimately arrested and charged in a nine-count indictment with burglary inthe first degree (three counts), menacing in the second degree (three counts), criminal trespass inthe second degree, criminal mischief in the second degree and harassment in the second degree.At the close of the proof at trial, County Court, without objection, submitted to the jury all of thecounts contained in the indictment with the exception of the charge of criminal trespass in thesecond degree. The court submitted, without objection, charges of burglary in the second degreeand criminal trespass in the second degree as lesser included offenses. The jury returned averdict convicting defendant of all of the charges submitted to it,[FN1]including the lesser included offense of burglary in the second degree. Defendant wassubsequently sentenced to three concurrent prison terms of 18 years on each conviction ofburglary in the first degree, a concurrent prison term of 15 years on his conviction for burglary inthe second degree, time served for his convictions for menacing in the second degree, criminalmischief in the fourth degree and harassment in the second degree, and five years of postreleasesupervision. Defendant now appeals.
First, we reject defendant's claim that County Court erred by admitting into evidence therecording of the 911 telephone call made by the victim's neighbor. This recording containedstatements made by witnesses to the event as it was unfolding and during an ongoing emergency.The statements, which were " 'sufficiently corroborated by other evidence' introduced at trial,"qualified for admission into evidence pursuant to the present sense impression exception (People v Foster, 52 AD3d 957,961 [2008], lv denied 11 NY3d 788 [2008], quoting People v Brown, 80 NY2d729, 734 [1993]) and the excited utterance exception to the rule against hearsay (see People v Dominick, 53 AD3d505, 505-506 [2008]; People v Rodriguez, 306 AD2d 686, 688 [2003], lvdenied 100 NY2d 624 [2003]).
We do agree with defendant that his conviction of the lesser included offense of burglary inthe second degree must be vacated.[FN2]Once the jury found defendant guilty of the greater offense of burglary in the first degree, itshould not have rendered a verdict on any lesser included offense to that charge (see People vHenderson, 41 NY2d 233, 235 [1976]; People v Skinner, 211 AD2d 979, 980[1995], lv denied 86 NY2d 741 [1995]; see also CPL 300.40 [3] [b]). As such,County Court should have set aside the jury's guilty verdict on this count and dismissed thecharge of burglary in the second degree.[*3]
We also find merit in defendant's argument that theindictment charging him with three separate counts of burglary in the first degree containedcharges that, as written, were multiplicitous. Although this issue was not properly preserved, weexercise our interest of justice jurisdiction to modify the judgment to dismiss two of said countsbecause the only distinguishing feature of each offense as charged in the indictment is the type ofweapon or dangerous instrument displayed by defendant while he was inside the victim'sapartment (see CPL 470.15 [3] [c]; People v Moore, 59 AD3d 809, 810 [2009]; but see People v Thompson, 34 AD3d931, 932 [2006], lv denied 7 NY3d 929 [2006]). While three different weapons weredisplayed by defendant during his encounter with the victim, there was but one break-incommitted during the attack. As a result, the multiple charges of burglary in the first degree asset forth in the indictment were clearly multiplicitous (see People v Aarons, 296 AD2d508, 508-509 [2002], lv denied 99 NY2d 532 [2002]; People v Perrin, 56 AD2d957, 958 [1977]; compare People vBrown, 20 AD3d 577, 578-579 [2005], lv denied 5 NY3d 826 [2005]).Therefore, the judgment must be modified by reversing defendant's conviction for burglary in thefirst degree as set forth in counts two and three of the indictment because they are repetitious andmerely a restatement of the charges contained in count one of the indictment.
The same rationale does not apply to the three counts in the indictment charging defendantwith menacing in the second degree. Each involved a separate episode that occurred during theencounter during which defendant three times menaced the victim with a different "dangerousinstrument" (see People v Dallas, 58 AD3d 1019, 1021 [2009], lv denied 12NY3d 815 [2009]). As such, these counts as pleaded in the indictment were not multiplicitousand defendant's conviction on these charges should be affirmed.
Defendant claims that the representation he received was inadequate and deprived him of hisconstitutional right to counsel. While counsel clearly should have objected not only to themultiplicitous nature of the charges as spelled out in the indictment, but also to the jury'srendition of a verdict that included a conviction for a lesser included offense, his representationof defendant, when viewed as an integrated whole, was both meaningful and effective. Inaddition to making relevant pretrial motions, counsel presented cogent arguments in a vainattempt to bar the admission into evidence of the 911 tape recording and vigorouslycross-examined witnesses who testified against defendant at trial. On balance, his effortsprovided defendant with meaningful representation and served to ensure that defendant receiveda fair trial (see People v Baldi, 54 NY2d 137, 147 [1981]; People v Hamms, 55 AD3d 1142,1145 [2008], lv denied 11 NY3d 925 [2009]; People v Ramos, 48 AD3d 984, 987 [2008], lv denied 10NY3d 938 [2008]).
Finally, we reject defendant's claim that the sentence imposed was harsh and excessive.Defendant has a criminal record that includes convictions of numerous offenses, including aprior felony for attempted burglary in the second degree. Given this history, and the terrifyingnature of the conduct which led to this conviction, we see no reason to disturb the sentence asimposed by County Court (see People vMitchell, 55 AD3d 1048, 1052 [2008]).
Defendant's remaining contentions have been reviewed and found to be without merit.
Peters, J.P., Spain, Lahtinen and McCarthy, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by reversing defendant's convictionsof burglary in the first degree under counts two and three [*4]ofthe indictment and the lesser included offense of burglary in the second degree; said countsdismissed and the sentences imposed thereon vacated; and, as so modified, affirmed.
Footnote 1: Because the jury founddefendant guilty of burglary in the second degree, it did not consider the lesser included offenseof criminal trespass in the second degree.
Footnote 2: We reach this issue even thoughthere was no objection to this charge being submitted to the jury or to the verdict as rendered,because the People concede that defendant's conviction on this count must be reversed and thecharge dismissed (see CPL 470.15 [3] [c]; People v Cruz, 41 AD3d 893, 894 [2007], lv denied 10NY3d 933 [2008]).