| People v Merritt |
| 2012 NY Slip Op 04795 [96 AD3d 1169] |
| June 14, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Cedric K.Merritt, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel),respondent.
Peters, P.J. Appeal from a judgment of the Supreme Court (Teresi, J.), rendered January 31,2011 in Albany County, upon a verdict convicting defendant of the crimes of burglary in thesecond degree and petit larceny.
Defendant was indicted for burglary in the second degree, grand larceny in the fourth degreeand criminal impersonation in the fourth degree after the fruits of a burglary of an apartment inthe City of Watervliet, Albany County were found in a car in which he was a passenger during atraffic stop. Following a hearing, Supreme Court denied defendant's motion to suppress theevidence recovered during the stop. Prior to the ensuing jury trial, the court granted defendant'smotion to dismiss the charge of criminal impersonation in the fourth degree, and the partiesstipulated to reducing the charge of grand larceny in the fourth degree to petit larceny. Defendantwas ultimately convicted of burglary in the second degree and petit larceny and sentenced to 15years in prison with five years of postrelease supervision on the burglary count and one year injail on the petit larceny count, to run concurrently. He now appeals.
We find no merit to defendant's contention that the evidence seized from the vehicle shouldhave been suppressed. Defendant does not dispute that the police had authority to stop thevehicle, which had a missing headlight (see People v Ellis, 62 NY2d 393, 396 [1984]; People v Muniz, 12 AD3d 937,938 [2004]; People v Lamanda, 205 AD2d 934, 935 [1994], lv denied 84 NY2d828 [1994]). Once the vehicle was lawfully stopped, the officer was justified in asking [*2]defendant for his name as part of a reasonable request forinformation and—after a New York Statewide Police Investigation Network (hereinafterNYSPIN) search did not return any results for the name he provided—in ordering him tostep out of the vehicle and detaining him until a further NYSPIN search of his true name wascompleted (see People v Hollman, 79 NY2d 181, 185 [1992]; People v Robinson,74 NY2d 773, 775 [1989], cert denied 493 US 966 [1989]; People v Green, 80 AD3d 1004,1005 [2011]; People v Tejada, 270 AD2d 655, 656 [2000], lv denied 95 NY2d805 [2000]). After the subsequent NYSPIN search indicated that defendant was wanted for anoutstanding warrant, he was arrested and placed in the patrol car. Upon reapproaching thevehicle, the officer observed a wooden bank for loose change crafted from an old post office boxtumbler matching the description of the stolen property in plain view on the floor behind thedriver's side seat. Contrary to defendant's contention, the shining of the flashlight into an area ofplain view was not an unreasonable intrusion and did not convert a proper observation into animpermissible search (see People v Cruz, 34 NY2d 362, 370 [1974]; People vFells, 279 AD2d 706, 709-710 [2001], lv denied 96 NY2d 758 [2001]; People vWilson, 284 AD2d 960, 961 [2001], lv denied 96 NY2d 943 [2001], 97 NY2d 689[2001]; People v Evans, 175 AD2d 456, 458 [1991], lv denied 79 NY2d 856[1992]). As great weight is accorded to the factual findings of the suppression court where, ashere, they are not clearly erroneous and are supported by the record (see People v Williams, 25 AD3d927, 928 [2006], lv denied 6 NY3d 840 [2006]; People v Muniz, 12 AD3d at938), we find no basis upon which to disturb its determination.
We further find that defendant's convictions are supported by legally sufficient evidence. Toconvict defendant of burglary in the second degree, the People were required to prove thatdefendant knowingly entered or remained unlawfully in a dwelling with the intent to commit acrime therein (see Penal Law § 140.25 [2]). The trial testimony established that thevictims left their apartment around 3:00 p.m. on February 21, 2010. Although the doors to theirapartment were left unlocked, only family had permission to enter the residence in their absence.A few hours later they returned to find that a bank for loose change and numerous pieces ofjewelry were missing from their bedroom. Defendant was found with the stolen property, whichhe admitted that he alone possessed, the day following the burglary and just a few blocks fromthe victims' apartment. These facts and the evidence of defendant's actions and demeanor whenconfronted by the police, when viewed in the light most favorable to the People (see People vAcosta, 80 NY2d 665, 672 [1993]; People v Bleakley, 69 NY2d 490, 495 [1987]),provided the jury with a proper basis from which to reasonably infer that defendant is the onewho burglarized the victims' home (seePeople v Hall, 57 AD3d 1222, 1225-1226 [2008], lv denied 12 NY3d 817[2009]; People v Scurlock, 33AD3d 366, 366 [2006], lv denied 7 NY3d 928 [2006]; People v Marmulstein, 6 AD3d879, 880-881 [2004], lv denied 3 NY3d 660 [2004]; People v Miller, 114AD2d 863, 864 [1985], lv denied 67 NY2d 763 [1986]; People v Sim, 53 AD2d992, 993 [1976], affd 44 NY2d 758 [1978]; compare People v Moore, 291 AD2d336 [2002]). This evidence was likewise legally sufficient to support the conviction of petitlarceny (see Penal Law § 155.25).
Nor are we persuaded that defendant's convictions are against the weight of the evidence.While defendant stated that he had found the property in a bag on a landing outside his friend'sformer apartment and took it because he was unsure why the property was there and wanted tosafeguard it until his friend's return, the jury was free to reject his version of the events (seePeople v Hall, 57 AD3d at 1226; People v Mangual, 13 AD3d 734, 736 [2004], lv denied 4NY3d 800 [2005]). Evaluating the evidence in a neutral light and weighing the probative force ofthe conflicting testimony and the relative strength of the conflicting inferences that may be drawntherefrom, while according deference to the jury's credibility determinations (see People v [*3]Carota, 93 AD3d 1072, 1075 [2012]; People v Underdue, 89 AD3d1132, 1133 [2011]; People vRichards, 78 AD3d 1221, 1222 [2010], lv denied 15 NY3d 955 [2010]), we findthat the evidence was given the weight it should be accorded and, consequently, defendant'sconvictions were not contrary to the weight of the evidence.
Defendant next challenges Supreme Court's jury instructions. His contention that the courterred in instructing the jury on consciousness of guilt is unpreserved for our review (seeCPL 470.05 [2]; People v James, 75 NY2d 874, 875 [1990]; People v Dallas, 58AD3d 1019, 1021 [2009], lv denied 12 NY3d 815 [2009]; People v Thaddies, 50 AD3d1249, 1250 [2008], lv denied 10 NY3d 965 [2008]). Because defendant did notrequest a missing witness instruction with respect to the People's failure to call the driver of thevehicle until after the close of all evidence, his request was untimely and, therefore, properlydenied (see People v Rodney, 79AD3d 1363, 1365 [2010]; People vTurner, 73 AD3d 1282, 1283-1284 [2010], lv denied 15 NY3d 896 [2010]).Lastly, Supreme Court did not err in instructing the jury regarding the permissible inference thatmay be drawn from the recent and exclusive possession of the fruits of a burglary (see Peoplev Baskerville, 60 NY2d 374, 382-383 [1983]) and, in light of the evidence adduced at trial,the charge as given was appropriate (see People v Howard, 60 NY2d 999, 1001 [1983];People v Green, 68 AD3d1782, 1782 [2009], lv denied 14 NY3d 888 [2010]).
Finally, we are unpersuaded that the sentence imposed was harsh or excessive, particularlygiven defendant's extensive criminal history, which includes a prior robbery and attemptedrobbery conviction as well as a number of theft-related offenses. Furthermore, " '[t]he fact thatthe sentence imposed after trial was greater than the sentence offered as part of a pretrial pleaagreement offer, which defendant rejected, is not proof that defendant was penalized forexercising his right to a jury trial' " (People v Danford, 88 AD3d 1064, 1068-1069 [2011], lvdenied 18 NY3d 882 [2012], quoting People v Robinson, 72 AD3d 1277, 1278 [2010], lv denied15 NY3d 809 [2010]; see People vSouffrant, 93 AD3d 885, 887 [2012]).
Mercure, Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.