| People v Woodrow |
| 2012 NY Slip Op 00424 [91 AD3d 1188] |
| Jnury 26, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DavidWoodrow, Appellant. |
—[*1] Robert M. Carney, District Attorney (Carl Falotico of counsel), for respondent.
Rose, J. Appeal from a judgment of the County Court of Schenectady County (Giardino, J.),rendered February 5, 2009, upon a verdict convicting defendant of the crimes of burglary in thefirst degree (two counts), possession of burglar's tools, criminal mischief in the fourth degree,criminal possession of a weapon in the second degree (two counts), criminal possession of aweapon in the third degree and criminal possession of a weapon in the fourth degree.
The occupant of the second-floor apartment of a house located in a residential neighborhoodheard banging on the front door of the house followed by banging on the apartment door and thenthe sound of a shot fired outside the apartment door. He retreated to the roof and screamed forhelp. Neighbors who heard and saw the victim on the roof called 911 and, while they were on thephone, saw a man exit the house. Responding police officers encountered defendant on a nearbystreet and, after a struggle, took him into custody because he matched the description provided tothe 911 dispatcher. The officers found a short-handled, double-headed ax stuck in defendant'swaistband and a loaded handgun in his pant's pocket. After a jury trial, defendant was convictedof two counts of burglary in the first degree, possession of burglar's tools, criminal mischief inthe fourth degree, two counts of criminal possession of a weapon in the second degree, criminalpossession of a weapon in the third degree and criminal possession of a weapon in the fourthdegree. Defendant was sentenced to concurrent prison terms of 20 years with five yearspostrelease supervision for the burglary in the first degree convictions and lesser concurrentsentences on the remaining convictions. Defendant appeals.[*2]
Initially, defendant contends that the proceedings beforeCounty Court were a nullity because the indictment was transferred to Supreme Court but thentried in County Court without any order transferring the case back to County Court. We cannotagree. Defendant's reliance on People ex rel. Dold v Martin (284 App Div 127 [1954]) ismisplaced as it is based on former Code of Criminal Procedure § 22, which, in its currentform (see CPL 230.10), has been "rendered obsolete by the constitutional provisionvesting administrative supervision of the courts in the Chief Administrator of the Courts"(Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 230.10;see NY Const, art VI, § 28 [b]; 22 NYCRR 200.14). As a superior court, CountyCourt had trial jurisdiction upon the filing of the indictment (see NY Const, art VI,§ 11 [a]; CPL 1.20 [24]; 10.10 [2] [b]; 10.20 [1] [a]; 210.05; People v Hart, 25 AD3d 815, 816[2006], lv denied 6 NY3d 834 [2006]), and the error defendant alleges, namely, the lackof a transfer order or notation in the record transferring the case from Supreme Court back toCounty Court, "is not jurisdictional in nature and is waived if not timely raised" (People v Wilson, 14 NY3d 895,897 [2010]; see People v Ott, 83AD3d 1495, 1496 [2011], lv denied 17 NY3d 808 [2011]). No challenge to thetransfer having been made before the trial court, it was waived (see CPL 470.05 [2]; People v Perez, 89 AD3d 1393,1395 [2011]; People v Ott, 83 AD3d at 1496).
Defendant next argues that the convictions for burglary in the first degree (see PenalLaw § 140.30 [1], [3]) and possession of burglar's tools (see Penal Law §140.35) are based on legally insufficient evidence because none of the witnesses was able toidentify him as being present at the scene of the burglary. Again, we disagree. Three neighborstestified that they heard loud banging or the victim screaming and then observed a slender blackmale wearing a dark hooded sweatshirt with a dark bag leaving the house. They described themale leaving the house as having pulled the hood of the sweatshirt tightly around his face,exposing only the nose and part of the eyes. The witnesses also described him as wearing jeansand colorful sneakers, and having the bag slung across his shoulder in newsboy fashion with alight colored strap. Defendant was detained by the police within minutes on a nearby street andmatched the description testified to by the neighbors, including having the hood on his sweatshirtpulled tightly around his face. The ax found on defendant was consistent with the hack marks onthe partially destroyed door of the apartment, and a shell casing found on the second floorlanding outside the apartment door matched defendant's gun, which was test fired and determinedto be fully operable. A bullet hole consistent with having been fired from the door of theapartment was also located in the bathroom of the apartment. Viewing this evidence in a lightmost favorable to the People, a valid line of reasoning and permissible inferences support thejury's conclusion as to each of the burglary counts and the possession of burglar's tools (see People v Hampton, 64 AD3d872, 874 [2009], lv denied 13 NY3d 796 [2009]; People v Tillman, 57 AD3d 1021, 1024 [2008]; People vBush, 266 AD2d 642, 643-644 [1999], lv denied 94 NY2d 917 [2000]). Also, uponindependent consideration of the evidence in a neutral light, we find that the verdicts are notagainst the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987];People v Tillman, 57 AD3d at 1024; People v Lopez, 9 AD3d 692, 694-695 [2004]).
As for defendant's claim of prosecutorial misconduct, most of the prosecutor's allegedmisstatements were either properly dealt with by County Court's instructions to the jury or validarguments as to the inferences the prosecutor believed the jury could draw from the evidencepresented (see People v Dickson, 58 AD3d 1016, 1018 [2009], lv denied 12NY3d 852 [2009]; People v Racine, 132 AD2d 899, 900 [1987], lv denied 70NY2d 754 [1987]). We do agree, however, that the prosecutor improperly speculated during hersummation about a conversation she imagined that the defendant might have had (see People v Edwards, 39 AD3d1078, 1081[*3][2007]), and she inappropriately questioned awitness on redirect examination concerning defendant's viewing of the documentaries "BowlingFor Columbine" and "Farenheit 9/11," as well as defendant's opinion of former President Bush(see People v Shutter, 72 AD3d1211, 1214 [2010], lv denied 14 NY3d 892 [2010]; People v Thornton, 4 AD3d 561,563 [2004], lv denied 2 NY3d 808 [2004]). These questions, objected to by defensecounsel, were, in our view, an irrelevant and improper effort by the prosecutor to rebut thewitness's description of defendant as a nonviolent, religious person, and the court erred inpermitting this line of questioning. Nevertheless, as the proof of defendant's guilt wasoverwhelming and these errors were isolated, they were harmless (see People v Nelson, 68 AD3d1252, 1255 [2009]; People v Thornton, 4 AD3d at 563; People v Almarez, 2 AD3d 1151,1152-1153 [2003], lv denied 2 NY3d 761 [2004]).
Finally, in light of the violent nature of the crime and the danger it posed to the community,we are not persuaded by defendant's argument that the sentence was harsh or excessive. Nor hashe identified any extraordinary circumstances that would justify its reduction (see People v Elwood, 80 AD3d988, 990-991 [2011], lv denied 16 NY3d 858 [2011]; People v Wright, 1 AD3d 707, 709[2003], lv denied 1 NY3d 636 [2004]). Defendant's remaining contentions have beenconsidered and found to be either unpreserved or otherwise unavailing.
Peters, J.P., Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.