| People v Leonard |
| 2011 NY Slip Op 02747 [83 AD3d 1113] |
| April 7, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Leo Leonard,Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the Supreme Court (Teresi, J.), rendered April 9,2009 in Ulster County, upon a verdict convicting defendant of the crimes of kidnapping in thesecond degree, criminal possession of a weapon in the third degree (two counts), endangering thewelfare of a child and burglary in the second degree.
Defendant and the victim (hereinafter the mother) are an estranged couple who are theparents of a daughter (born in 2007). In February 2008, shortly after the child was born,defendant appeared uninvited at the mother's home for the purported purpose of visiting with thechild. After the mother admitted defendant into her home, an argument ensued during whichdefendant is alleged to have struck the mother, threatened her with a large knife and inflictedsuperficial wounds and scratches on her nose and neck. After the mother fled, the police werecalled and, upon their arrival, found defendant outside the residence holding the child with aknife near her throat. Defendant retreated with the child back into the residence and held thepolice at bay for one hour while brandishing the knife and threatening to kill the child. Finally,defendant agreed to surrender, and the child was returned unharmed to the mother.
Defendant was subsequently charged by indictment with kidnapping in the second degree,criminal possession of a weapon in the third degree (two counts), assault in the second [*2]degree, endangering the welfare of a child and burglary in thesecond degree (two counts). At trial, immediately prior to submitting the case to the jury for itsdeliberations, Supreme Court dismissed those charges in the indictment that required the Peopleto prove that the mother had sustained a "physical injury" when she claimed to have beenattacked by defendant (see Penal Law § 140.25 [1] [b]; § 120.05[2]).[FN1]Defendant was subsequently convicted of the remaining charges submitted to the jury andsentenced to an aggregate prison term of 25 years, plus five years of postrelease supervision.Defendant now appeals.
Defendant initially contends that his convictions for kidnapping in the second degree,endangering the welfare of a child and burglary in the second degree were not supported bylegally sufficient evidence and were against the weight of the credible evidence introduced attrial. As for the kidnapping charge, the People were required to prove that defendant abducted thechild or restrained her with intent to prevent her liberation by threatening to use deadly physicalforce (see Penal Law §§ 135.00, 135.20; People v Kruppenbacher, 81 AD3d 1169, 1172 [2011]). Defendantdenies imposing any restraint on the child and claims that, throughout this incident, he only heldonto her because of her age. He also argues that he did not abduct the child because he did nottake her from her home or any place where it was unlikely that she would be found. However,competent evidence that provided a legally sufficient basis for kidnapping was admitted at trialestablishing that defendant, after gaining admission to the house, took the child and, whilebrandishing a knife, refused the mother's repeated requests that he return the child to her. Whenthe mother fled, defendant continued to hold the child and refused to return her to the mother,despite being directed to do so by the police. In addition, defendant threatened to use the knife onthe child if the police sought to forcibly intervene.
As for defendant's conviction for burglary in the second degree, the People were required topresent evidence establishing that, after defendant was admitted into the mother's home, heremained there unlawfully with the intent to commit a crime and used or threatened to use adangerous instrument (see Penal Law § 140.25 [1] [c]). Here, the mother'stestimony, admissions attributed to defendant and observations by other witnesses who testifiedat trial established that, while defendant may have been initially permitted by the mother to enterher home, he refused to leave and, while there, threatened both the mother and the child with alarge knife (see Penal Law § 140.25 [1] [c]; People v Hall, 57 AD3d 1222, 1225 [2008], lv denied 12NY3d 817 [2009]; compare People vGreen, 24 AD3d 16, 18 [2005]).
We do not agree with defendant that his conviction for endangering the welfare of a childwas dependent on proof being admitted that the child was actually injured during thisconfrontation. Defendant's actions, as detailed by the testimony of eyewitnesses and, inparticular, the description of him holding a large knife against the child while being ordered bythe police at gunpoint to release her, constituted competent evidence that he, at the time,"knowingly act[ed] in a manner likely to be injurious to the physical, mental or moralwelfare of a child less than seventeen years old" (Penal Law § 260.10 [1] [emphasisadded]; see People v Nesbitt, 69AD3d 1109, 1112 [2010], lv denied 14 NY3d 843 [2010]; People v Kuykendall, 43 AD3d493, 495-496 [2007], lv denied 9 NY3d 1007 [2007]). Moreover, as to each of thesecharges—kidnapping in the second degree, burglary in the second degree and endangeringthe [*3]welfare of a child—the evidence submitted insupport of each, when viewed " 'in a neutral light and weighing the probative force of theconflicting testimony and the relative strength of any conflicting inferences which may be drawn,as well as giving due deference to the jury's credibility assessments,' " established that the verdictwas not against the weight of the credible evidence (People v Dolan, 51 AD3d 1337, 1338 [2008], lv denied 12NY3d 757 [2009], quoting People vPomales, 49 AD3d 962, 963 [2008], lv denied 10 NY3d 938 [2008]).[FN2]
Defendant also claims that County Court (Bruhn, J.) committed reversible error when itsummarily denied, without a hearing, the omnibus motion he filed prior to trial. In this motion,defendant sought, among other things, dismissal of the indictment, suppression of certainevidence, all Brady material in the People's possession, a bill of particulars providingmore specifics regarding the crimes charged in the indictment, and an order requiring that thehearings be held at least 20 days prior to the commencement of trial. When this motion wasmade, County Court had adopted a policy requiring that the parties make a good faith effort toarrive at a stipulation that would avoid the need for any pretrial motions. When defendantapparently refused to enter into such a stipulation and instead filed this omnibus motion, thecourt summarily denied it. We agree with defendant that the court should not have substituted itsprocedure for that set forth in the Criminal Procedure Law for the processing of such motionsand was required to address the applications contained in defendant's omnibus motion on themerits (see CPL 255.20 [1]; 710.60 [3], [4], [6]). However, even though the court didsummarily deny defendant's motion, pretrial hearings were, in fact, held on defendant's motion topreclude the admission of certain evidence at trial, including statements that the police claim hemade at the time of his arrest. Also, defendant was provided with a bill of particulars prior totrial, and the District Attorney specifically responded to his request for Brady material.As a result, County Court's decision to summarily deny this motion without a hearing was, underthe circumstances, harmless error (see generally People v Crimmins, 36 NY2d 230[1975]).
Defendant also claims that County Court erred by not performing an inspection of the grandjury minutes prior to trial to determine whether the charges contained in the indictment weresupported by legally sufficient evidence (see CPL 210.20 [1] [b]; 210.30). He also arguesthat, if it had conducted such an inspection, those charges alleging that he had injured the motherduring this confrontation would have been dismissed prior to trial, and evidence to that effectwould not have been heard by the jury. Initially, we note that, since we have already concludedthat the crimes for which defendant stands convicted are supported by legally sufficient evidence,"defendant's challenge to the legal sufficiency of the evidence before the grand jury is precluded"(People v Dowling, 75 AD3d838, 840 [2010], lv denied 15 NY3d 952 [2010]). As for his claim that such aninspection would have resulted in a bar to the introduction of any evidence claiming that he hadinjured the mother during this confrontation, the mother's description of how defendant attackedher after he was admitted into the house and his use of the knife was obviously relevant to thekidnapping and burglary charges that were submitted to the jury for its consideration (see People v Lott, 55 AD3d 1274,1275 [2008], lv denied 11 NY3d 898 [2008]; see generally People v Alvino, 71NY2d 233, 242-243 [1987]; People v Tinning, 142 AD2d 402, 406 [1988], lvdenied 73 NY2d 1022 [1989]).[*4]
Defendant also contends that he was denied a fair trialwhen the People were allowed to introduce evidence of prior incidents involving domestic abusebetween him and the mother. However, this evidence served to provide necessary background asto the mother's relationship with defendant as it existed at the time of the incident and wasobviously relevant as to defendant's state of mind when he was holding the child and threateningher and the mother with a knife (seePeople v Lindsey, 75 AD3d 906, 908 [2010], lv denied 15 NY3d 922 [2010]; People v Thibeault, 73 AD3d1237, 1241 [2010], lv denied 15 NY3d 810 [2010]; People v Meseck, 52 AD3d 948,950 [2008]; People v Westerling, 48AD3d 965, 967-968 [2008]; Peoplev Poquee, 9 AD3d 781, 782 [2004], lv denied 3 NY3d 741 [2004]). Anyprejudice that might otherwise have resulted from the admission of such evidence was minimizedby the instructions repeatedly given by Supreme Court to the jury as to the limited purpose forwhich this evidence was received and, in particular, by the statement made by the court in itsfinal charge given to the jury immediately prior to its deliberations (see People v Doyle, 48 AD3d 961,964 [2008], lv denied 10 NY3d 862 [2008]; compare People v Westerling, 48AD3d at 968).
Defendant also claims that the District Attorney was guilty of misconduct throughout the trialand, in particular, in statements made during his summation. Timely objections to many of thesestatements were not made at trial and, thus, to a large extent, this issue has not been preserved forour review (see CPL 470.05; People v McCall, 75 AD3d 999, 1002 [2010], lv denied 15NY3d 894 [2010]; People vClairmont, 75 AD3d 920, 923-924 [2010], lv denied 15 NY3d 919 [2010]).Where objections were made—and sustained by Supreme Court—defendant arguesthat the statements were so egregious that, despite the court's rulings, he was effectively deprivedof a fair trial. However, any prejudice that might have resulted was ameliorated by the court'sprompt and appropriate instructions to the jury (see People v White, 79 AD3d 1460, 1464-1465 [2010]; People v Joseph, 68 AD3d 1534,1537 [2009], lv denied 14 NY3d 889 [2010], cert denied 562 US —, 131 SCt 797 [2010]; People v Mitchell,55 AD3d 1048, 1051-1052 [2008], lv denied 12 NY3d 856 [2009]). In addition,many of the statements in question represented fair comment on the evidence introduced at trialor constituted appropriate responses to arguments made by defendant's counsel in his summation(see People v Molina, 79 AD3d1371, 1377 [2010]; People vShutter, 72 AD3d 1211, 1214 [2010], lv denied 14 NY3d 892 [2010]).
Defendant also argues that Supreme Court committed reversible error by not submittingcertain lesser included offenses to the jury for its consideration during deliberations. In particular,he argues that unlawful imprisonment should have been submitted to the jury as an alternative tokidnapping in the second degree and criminal trespass as a lesser included offense to burglary inthe second degree. Neither, in our view, represents a reasonable view of the evidence presented attrial and, as such, were not lesser included offenses to have been considered by the jury during itsdeliberations (see Penal Law §§ 135.05, 135.20, 140.15, 140.25; People v Sturdevant, 74 AD3d1491, 1493 [2010], lv denied 15 NY3d 810 [2010]; People v Gardner, 28 AD3d 1221,1222 [2006], lv denied 7 NY3d 812 [2006]).
Defendant's remaining claims have been considered and found to be without merit.
Peters, J.P., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: The counts in question chargedefendant with one count each of assault in the second degree and burglary in the second degree.
Footnote 2: Defendant's argument that thecharge of kidnapping in the second degree merged with his conviction of burglary in the seconddegree was not preserved for our review (see People v Kruppenbacher, 81 AD3d at1170).