| People v Berry |
| 2010 NY Slip Op 07829 [78 AD3d 1226] |
| November 4, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jesse Berry,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Schenectady County (Hoye, J.),rendered April 29, 2009, upon a verdict convicting defendant of the crime of criminal possession ofstolen property in the fourth degree (three counts).
In the early morning hours of July 3, 2008, a resident of the Town of Rotterdam, SchenectadyCounty observed defendant and Jeremy Nix as they rifled through vehicles in her neighborhood androde from house to house in a Ford Explorer. The witness relayed her observations to a police officerand also supplied the officer with the Explorer's license number. A computer check on the licenseconducted by police revealed that the Explorer had been reported as stolen. Soon thereafter, the officerlocated the vehicle, which was driven by Nix with defendant as a passenger. Defendant and Nix werearrested, and a search of the vehicle resulted in police retrieving several credit cards that did not belongto either man.
The men were charged as codefendants in a five-count indictment. One count was dismissed priorto trial. Defendant proceeded to trial on the remaining four counts, all of which charged criminalpossession of stolen property in the fourth degree; the first count pursuant to Penal Law §165.45 (5) (motor vehicle exceeding $100 value) and the other three counts pursuant to Penal Law§ 165.45 (2) (separate counts for each of the three credit cards found in the vehicle). Nix, whoreceived a favorable plea deal, testified on behalf of the People. A jury [*2]acquitted defendant of one of the counts pertaining to a credit card, butfound him guilty of the remaining three counts. He was sentenced as a second felony offender toconcurrent prisons terms of 2 to 4 years on each count and now appeals.
Defendant contends that the verdict was not supported by legally sufficient evidence and wasagainst the weight of the evidence. He premises this contention primarily upon the argument that thetestimony of Nix was from an accomplice and was not sufficiently corroborated (see CPL60.22). " 'New York's accomplice corroboration protection, while persistently unique, requires onlyenough nonaccomplice evidence to assure that the accomplices have offered credible probativeevidence' " (People v Besser, 96 NY2d 136, 143 [2001], quoting People v Breland,83 NY2d 286, 293 [1994]). "Indeed, even '[s]eemingly insignificant matters may harmonize with theaccomplice's narrative so as to provide the necessary corroboration' " (People v Caban, 5 NY3d 143, 155[2005], quoting People v Steinberg, 79 NY2d 673, 683 [1992]). "Independent evidence neednot be offered to establish each element of the offense or even an element of the offense; the People'sburden is merely to offer some nonaccomplice evidence 'tending to connect' defendant to the crimecharged" (People v Besser, 96 NY2d at 143-144, quoting CPL 60.22 [1]; see People v Reome, 15 NY3d 188,191-192 [2010]).
Here, Nix testified that, after he and another individual found the key hidden in the unlockedExplorer, they stole the vehicle, picked up defendant and told him that it was stolen. According to Nix,over the next several days, defendant drove the vehicle at various times, slept in the vehicle, suggestedleaving the vehicle temporarily to avoid police detection and participated in using the vehicle to drivearound the area for the purpose of seeking unlocked cars to rummage through for any valuables. Nixrecalled that some of the stolen credit cards discovered by police in the Explorer came from a walletfound in a briefcase located in a vehicle that he and defendant had broken into. He also recalled findinga passport in that vehicle with a "foreign sounding" name. Corroborative evidence included testimony ofthe witness who observed defendant and Nix using the Explorer to go from house to house in herneighborhood trying car doors and entering unlocked vehicles. In addition, the owner of the stolencredit cards testified that the credit cards were in his billfold inside a briefcase located in his vehicleparked at his home in Schenectady County and he discovered his briefcase missing from the vehicle thefollowing morning, along with other items.
The testimony of the witnesses at trial set forth evidence that was "adequate 'to satisfy the minimalrequirements' " for corroborative evidence (People v Gilbo, 52 AD3d 952, 954 [2008], lv denied 11 NY3d788 [2008], quoting People v Jones, 85 NY2d 823, 825 [1995]; see People vRiddick, 246 AD2d 821, 822-823 [1998], lv denied 91 NY2d 944 [1998]; People vAdams, 198 AD2d 545, 546 [1993]). In addition, when viewed in the light most favorable to thePeople, the evidence was legally sufficient for a jury to find that each of the elements of the crimes forwhich defendant was convicted was established beyond a reasonable doubt (see People v Boodrow, 30 AD3d 758,759 [2006], lv denied 7 NY3d 900 [2006]; People v Harrison, 251 AD2d 893, 895[1998], lv denied 92 NY2d 949 [1998]). Having also evaluated the evidence in a neutral lightwhile according deference to the jury's credibility determinations, we find that the jury's verdict was notagainst the weight of the evidence (seePeople v Green, 49 AD3d 1029, 1030 [2008], lv denied 10 NY3d 863 [2008]; People v Torres, 45 AD3d 1054,1054-1055 [2007], lv denied 10 NY3d 772 [2008]).
Next, we address briefly several of defendant's arguments. With regard to the Molineux[*3]evidence, we find no reversible error. County Court engaged in aproper balancing of the probative value against potential prejudice, permitted a limited amount ofinextricably interwoven recent acts that were also relevant to motive, and gave appropriate cautionaryinstructions to the jury about such evidence (see generally People v Alvino, 71 NY2d 233,241-243 [1987]; People v Jeanty, 268 AD2d 675, 679 [2000], lv denied 94 NY2d945 [2000]). County Court acted within its discretion in not permitting defendant to call two witnesseswho purportedly would have contradicted a small portion of Nix's testimony since this involved acollateral issue pertinent only to Nix's credibility (see People v Pavao, 59 NY2d 282, 288-289[1983]); and, moreover, Nix acknowledged his prior inconsistency (see People v Benson, 233AD2d 749, 751 [1996], lv denied 89 NY2d 940 [1997]). Defendant's contention that CountyCourt failed to comply with the requirements of CPL 400.21 when sentencing him as a second felonyoffender was not preserved for review as he did not object at sentencing and, in any event, the recordreflects substantial compliance with the statutory requirements (see People v Glynn, 72 AD3d 1351, 1352 [2010], lv denied 15NY3d 773 [2010]; People v Atkinson, 58 AD3d 943, 944 [2009]).
Finally, we consider defendant's assertion that it was error not to grant his request to charge thejury as to various lesser included offenses. Specifically, he asked for a charge of criminal possession ofstolen property in the fifth degree (see Penal Law § 165.40) as a lesser included offenseof all the charges. He also requested a charge under the joyriding statute—i.e., unauthorized useof a vehicle in the third degree (see Penal Law § 165.05 [1])—as a lesserincluded offense of the possession charge involving the Explorer. A defendant is entitled to a lesserincluded offense charge upon satisfying a two-part test—the "defendant must establish that it isimpossible to commit the greater crime without concomitantly committing the lesser offense by the sameconduct . . . [and] there must be a reasonable view of the evidence to support a findingthat the defendant committed the lesser offense but not the greater" (People v Van Norstrand,85 NY2d 131, 135 [1995] [citations omitted]; see People v Davis, 14 NY3d 20, 22-23 [2009]; People vGlover, 57 NY2d 61, 63-64 [1982]).
The request for a charge of criminal possession of stolen property in the fifth degree was properlydenied as to all counts. Although the first prong of the test was satisfied, there was no reasonable viewof the evidence that the count involving the Explorer was anything other than a motor vehicle thatexceeded $100 in value (see Penal Law § 165.45 [5]) when the owner testified that hereceived about $2,200 for it shortly after it was recovered. As for the two counts involving credit cards,there is no reasonable view of the evidence that the stolen items were anything but credit cards(see Penal Law § 165.45 [2]). Finally, in light of the evidence establishing possession ofthe Explorer for several days by defendant and Nix, their use of the vehicle and Nix's admission ofstealing the vehicle, we find that County Court properly denied the request for a charge of unauthorizeduse of a vehicle since the evidence does not reasonably support a conclusion that the Explorer wasmerely being used for a joy ride (see People v Palmer, 193 AD2d 888, 889-890 [1993]).
Cardona, P.J., Mercure, Spain and Garry, JJ., concur. Ordered that the judgment is affirmed.