| People v Shaver |
| 2011 NY Slip Op 05992 [86 AD3d 800] |
| July 21, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Daniel J.Shaver, Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joshua H. Povill of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the Supreme Court (Kavanagh, J.), renderedOctober 27, 2004 in Ulster County, upon a verdict convicting defendant of the crimes of burglaryin the second degree and sexual abuse in the first degree.
The victim was sleeping on a couch in her family's home when she awoke to find a manpartially on top of her, touching her breast and attempting to put his hand down her pants. Shetried to push the man off her and yelled at him to stop. The intruder fled the home, but the victimsaw his clothing through a window as he ran away. Defendant, a contractor who had performedwork in the family's home, was eventually charged with burglary in the second degree and sexualabuse in the first degree. After County Court (Vogt, J.H.O.) denied defendant's motion tosuppress clothing that the police obtained from him, a jury convicted him of both counts.Supreme Court sentenced defendant to 13 years in prison and five years of postreleasesupervision on the burglary count and seven years in prison on the sexual abuse count. Defendantappeals.
County Court properly denied defendant's suppression motion. At the hearing, a detectivetestified that when the police executed an arrest warrant at defendant's home, defendant waswearing only a T-shirt, pants and socks. Due to the weather conditions, the detective askeddefendant if he wanted additional clothing. Defendant requested footwear and a coat. To preserveofficer safety, the police did not allow defendant to retrieve additional clothing himself. [*2]Defendant directed the detective to his bedroom. The detectivetestified that he did not open any drawers or closet doors, but retrieved a black leather jacket thatwas draped over a chair and a pair of boots that were on the floor. After reviewing his notes atthe police station, the detective realized that the jacket and boots matched the victim's descriptionof the clothing that the perpetrator wore when he committed the crime. Thus, the clothing wasseized from defendant when he was processed at the jail. Giving deference to the hearing court'sfactual findings, which are supported by the testimony (see People v Davis, 58 AD3d896, 898 [2009]), the evidence sufficiently established that the police were lawfully indefendant's house to effect his arrest pursuant to a warrant, they retrieved the items of clothingwith defendant's consent and they properly seized the clothing upon discovering the potential linkbetween this evidence and the crime (see People v Gilman, 135 AD2d 951, 952 [1987],lv denied 71 NY2d 896 [1988]). Therefore, the court properly denied defendant's motionto suppress his clothing.
The conviction was not against the weight of the evidence. Defendant was familiar with thefamily's habits and home, having worked there for many months, and his clothing matched thatworn by the perpetrator. The victim testified that she awoke to find a man lying partially on topof her, touching her right breast. She struggled but could not get up, and she told the man severaltimes to stop before he eventually covered her face and fled. The victim testified that after theincident, she found a hat next to the couch that had not been there when she went to sleep. DNAobtained from the hat's inner band matched defendant's DNA. A dried secretion on the victim'sright breast contained DNA that was consistent with defendant's DNA mixed with at least oneother person's, and the victim could not be ruled out as the other contributor; all of the alleles inthe DNA obtained from the swab of the secretion could be accounted for by defendant and thevictim. Defendant testified that he had no physical contact with the victim and was not present atthe house on the night of the incident. He provided no plausible explanation for how his DNAcould be present on the victim's breast. Defendant's only arguments concerning the weight of theevidence attack the credibility of certain witnesses or inconsistencies in their testimony; thesematters were either irrelevant or were considered by the jury. Independently viewing theevidence, but deferring to the jury's credibility determinations, we find that the weight of theevidence supports the verdict (seePeople v Porter, 82 AD3d 1412, 1414-1415 [2011], lv denied 16 NY3d 898[2011]).
Although the People failed to provide the defense with their first witness's grand jurytestimony prior to him taking the stand at trial (see CPL 240.45 [1]), the transcript wasturned over prior to cross-examination. Defense counsel was given time to review the grand jurytestimony and actually used it to cross-examine the witness. As the error was remedied anddefendant did not ask for any sanction, his argument about the Rosario violation isunpreserved for our review (see People v Rogelio, 79 NY2d 843, 844 [1992]).
Supreme Court did not deprive defendant of his constitutional right to confront witnesses.The court admitted into evidence a 911 call made by the victim and her mother immediately afterthe incident. The statements on the tape were not testimonial, as their purpose was to enable thepolice to meet an ongoing emergency and apprehend the perpetrator, not to provide evidence forlater prosecution (see Davis v Washington, 547 US 813, 827-828 [2006]). In any event,the victim, her mother and one of the two 911 dispatchers who participated in the call testified attrial. The court permitted admission of the tape as a prior consistent statement [*3]due to the anticipated defense that the victim was fabricating theentire assault.[FN*]Defendant did not request a limiting instruction when the 911 tape was admitted or played to thejury, so he cannot now argue that the court erred in failing to give such an instruction (see People v Marshall, 65 AD3d710, 712 [2009], lv denied 13 NY3d 940 [2010]).
Counsel provided defendant with effective assistance. Several of defendant's argumentsagainst counsel pertain to evidence outside the record, which cannot be raised on direct appealand are more appropriately addressed in a motion pursuant to CPL article 440 (see People v Clinkscales, 83 AD3d1109, 1110 [2011]; People vRivera, 78 AD3d 1423, 1424 [2010]). Defendant's other complaints are mainlydisagreements with trial strategy, but we will not second-guess counsel's rational strategicdecisions (see People v Clinkscales, 83 AD3d at 1110; People v McCall, 75 AD3d 999,1002 [2010], lv denied 15 NY3d 894 [2010]).
Upon polling the jury at defendant's request after it announced its verdict of guilty on the firstcount of burglary in the second degree, the court clerk asked whether the jurors found defendantguilty of "burglary in the third degree" and each juror responded in the positive. The indictmentcharged defendant with burglary in the second degree, and no lesser included offense wassubmitted to the jury. Defendant's argument concerning this error—the clerk asking aboutthe wrong degree—is unpreserved for our review because he failed to object before thejury was discharged, at a time when Supreme Court could have addressed and remedied the error(see People v Lynch, 81 AD3d1292, 1292-1293 [2011]; People v Nairne, 258 AD2d 671, 671 [1999], lvdenied 93 NY2d 1003 [1999]). Despite the clerk's misstatement while polling the jury, therecord reflects that the jury convicted defendant of the only burglary charge presented, namelyburglary in the second degree (see People v Nairne, 258 AD2d at 672).
Defendant's remaining contentions have been reviewed and found to be without merit.
Rose, J.P., Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Supreme Court offered toexclude the tape if defendant stipulated that he was not going to make a claim of recentfabrication, but defendant would not so stipulate.