| People v Sturdevant |
| 2010 NY Slip Op 04885 [74 AD3d 1491] |
| June 10, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Terry L.Sturdevant Jr., Appellant. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Garry, J. Appeal from a judgment of the Supreme Court (Dowd, J.), rendered January 30,2009 in Chenango County, upon a verdict convicting defendant of the crimes of burglary in thesecond degree and petit larceny.
In November 2007, a police officer, responding to a telephone call from a neighbor reportinga possible burglary at the victim's residence, saw defendant walking nearby. Upon seeing theofficer, defendant ran and was apprehended after a brief pursuit. The victim's property wasdiscovered in the immediate vicinity. Defendant was indicted for burglary in the second degreeand petit larceny. His motion to suppress his statements to the police was denied after aHuntley hearing. He was convicted as charged following a jury trial and sentenced to aprison term of eight years and five years of postrelease supervision. Defendant appeals.
Supreme Court properly admitted defendant's statements to the police into evidence. InJanuary 2008, the People filed a notice pursuant to CPL 710.30 indicating that statementsintended to be used at trial were contained in an attached police report; the report had also beenfurnished to defendant at his arraignment. A second, supplementary notice was filed in October2008, directly quoting defendant's statements as they appeared in the police report. Thus,defendant was furnished with notice that adequately set out the sum and substance of hisstatements and permitted him to intelligently identify them (see People v Lopez, 84NY2d 425, [*2]428 [1994]; People v Henderson, 4 AD3d 616, 618 [2004], lv denied 2NY3d 800 [2004]). Further, as the purpose of the notice requirement is to enable defendant tochallenge the voluntariness of his statements before trial (see People v Borthwick, 51 AD3d 1211, 1215 [2008], lvdenied 11 NY3d 734 [2008]), defendant waived his objection to the adequacy of the noticeby making his suppression motion (seePeople v Trimmer, 30 AD3d 820, 822 [2006], lv denied 7 NY3d 818 [2006];People v Merrill, 226 AD2d 1045, 1045 [1996], lv denied 88 NY2d 1022[1996]). Defendant's claim on appeal that the statements should have been suppressed becauseno probable cause for his arrest was shown was not sufficiently addressed in his pretrial motion,and is thus unpreserved, and he does not challenge the court's determination that they were madevoluntarily.
Defendant next contends that his burglary conviction was based on legally insufficientevidence and was against the weight of the evidence because the People did not prove that heentered the victim's residence with the intent to commit a crime therein (see Penal Law§ 140.25). "[I]ntent may be inferred from the circumstances of the intruder's unlawfulentry, unexplained presence on the premises, and actions and statements when confronted bypolice or the property owner" (People vVasquez, 71 AD3d 1179, 1180 [2010] [citations omitted]). Here, the neighbor whocalled the police testified that he saw defendant standing at the victim's door and later saw himleaving the residence. The victim testified that she did not know defendant and had not givenhim permission to be there. While defendant claimed that he did not remember going to thevictim's residence, the arresting officer testified that defendant had stated he was on the victim'sproperty to look for someone but could not remember the person's name. Defendant furthertestified that, when apprehended, he was looking for bottles and cans to return for cigarettemoney; however, he had no bottles, cans, or collection bag, and he identified a pack of cigaretteslying on the ground as belonging to him. Finally, police found items belonging to the victim inthe bushes nearby; the day had been rainy but these items were relatively dry. Viewing thisevidence in the light most favorable to the People, there is a valid line of reasoning andpermissible inferences that could lead a jury to conclude that defendant entered the victim'shome with intent to commit a crime therein (see People v Bleakley, 69 NY2d 490, 495[1987]; People v Rodriguez, 68AD3d 1351, 1352 [2009], lv denied 14 NY3d 804 [2010]). Evaluating the evidencein a neutral light and with due deference to the jury's opportunity to assess witness credibility,the conviction was not against the weight of the evidence (see People v Caston, 60 AD3d 1147, 1150 [2009]; People v Griffin, 26 AD3d 594,596 [2006], lv denied 7 NY3d 756 [2006]).
Defendant's request for a jury charge on the lesser included offense of criminal trespass wasproperly denied. There was no reasonable evidence "suggesting a noncriminal purpose for [his]entry" into the victim's residence (People v Martinez, 9 AD3d 679, 681 [2004], lv denied 3NY3d 709 [2004]) and, thus, no reasonable view of the evidence supporting a conclusion that he"knowingly enter[ed] or remain[ed] unlawfully in a dwelling" (Penal Law § 140.15), butdid not "inten[d] to commit a crime therein" (Penal Law § 140.25; see People v VanNorstrand, 85 NY2d 131, 135 [1995]; People v Barringer, 54 AD3d 442, 444 [2008], lv denied11 NY3d 830 [2008]). Defendant also contends that the request for a jury charge on the defenseof intoxication was improperly denied. He testified that he and two other persons shared a literand a half of vodka, used marihuana, and "popped some pills" on the morning of the incident. Tosupport such a charge requires "[m]ore than a bare assertion by a defendant that he wasintoxicated" (People v Gaines, 83 NY2d 925, 927 [1994]) or that he used alcohol ordrugs before committing an offense. The evidence must be sufficient " 'for a reasonable person toentertain a doubt as to the element of intent' " on the basis of intoxication (People vRodriguez, 76 NY2d 918, 920 [1990], [*3]quoting Peoplev Perry, 61 NY2d 849, 850 [1984]). Defendant did not indicate how much alcohol ormarihuana he consumed or what kind of pills he took and, other than describing himself as"high" and "a little intoxicated," he offered no details as to the impact of these substances on hisbehavior and mental state (see People v Gaines, 83 NY2d at 927). The only otherevidence of his intoxication was an entry on the police report that he was "impaired" when hewas arrested. The officer who made the entry testified that he could not remember why he haddone so and that defendant was coherent in speaking with police and answering questions.Further, although defendant claimed that he could not recall entering the victim's property, heremembered why he had gone to the area and described his encounter with the police in detail. Inthese circumstances, an instruction as to his intoxication was not required (see People v Park, 12 AD3d 942,943 [2004]; People v Maxwell, 260 AD2d 653, 654 [1999], lv denied 93 NY2d1004 [1999]).
Supreme Court did not abuse its discretion in ruling after a Sandoval hearing that thePeople could cross-examine defendant about prior convictions for petit larceny and attemptedpetit larceny (see People v Hayes, 97 NY2d 203, 207-208 [2002]; People v Jones, 70 AD3d 1253,1254 [2010]). Although defendant's criminal history included other offenses pertinent to hisveracity, the court appropriately limited the inquiry to three recent convictions; the People'srelatively brief cross-examination actually addressed only two. The inquiry was not precluded bythe similarity of the convictions to the charged offenses (see People v Mitchell, 57 AD3d 1308, 1311 [2008]), since "'[p]roof of willingness to steal has been specifically recognized as very material proof of lack ofcredibility' " (People v Willis, 282 AD2d 882, 883 [2001], lv denied 96 NY2d869 [2001], quoting People v Moore, 82 AD2d 972, 972 [1981]). As the only witness onhis own behalf, defendant's credibility was of particular importance to the jury (see People vWillis, 282 AD2d at 883). Finally, although no limiting instruction was given, we note thatnone was requested, and do not find that failure to do so requires reversal (see People vWilliams, 50 NY2d 996, 998 [1980]; People v Raymond, 177 AD2d 733, 734[1991]).
Defendant's right to counsel was not violated by Supreme Court's denial of his request for anew assigned attorney. Such a request should be granted upon a showing of good cause, such asa conflict of interest or other irreconcilable differences (see People v Dunton, 19 AD3d 808, 808-809 [2005], lvdenied 5 NY3d 805 [2005]; People v Boyer, 237 AD2d 743, 744 [1997], lvdenied 90 NY2d 855 [1997]). Defendant's trial counsel asked to be removed, stating that hedid so at defendant's request and alleging that defendant had his own defense theories andstrategies, had made multiple motions on his own behalf, and had apparently complained aboutcounsel to the Committee on Professional Standards. We find that these differences resulted,essentially, from strategic disagreements (see People v Tenace, 256 AD2d 928, 930[1998], lv denied 93 NY2d 902 [1999]) and from an antagonistic attitude on defendant'spart (see People v Brown, 62 AD3d1089, 1092 [2009], lv denied 13 NY3d 742 [2009]) and, therefore, did not requiresubstitution. As the court noted, counsel was defendant's third assigned attorney and anothersubstitution would have delayed his trial, then scheduled to commence the following week.Notably, defendant does not contend that he received ineffective assistance, and the recordreveals that his counsel did provide vigorous and effective representation.
Finally, defendant's contention that his sentence was harsh and excessive is without merit. Inview of his youth and his extensive criminal history, which reflected what Supreme Courtdescribed as an escalating pattern, we find no abuse of discretion or extraordinary circumstanceswarranting modification (see People vBrisson, 68 AD3d 1544, 1548 [2009], lv denied 14 NY3d 798 [2010]).[*4]
Spain, J.P., Rose, Lahtinen and Egan Jr., JJ., concur.Ordered that the judgment is affirmed.